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SPEECH 



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HON. J. S. GREEN, OF MISSOURI 



ON 



THE CONSTITUTION OF KANSAS; 



DELIVERED 



IN THE SENATE OP THE UNITED STATES, DECEMBER 16, 1857. 






WASHINGTON: 
PRINTED AT THE CONGRESSIONAL GLOBE OFFICE- 

1857. 



THE PRESIDENTS MESSAGE-KANSAS. 



The Senate having, on motion of Mr. Browv, 
resumed the consideration of the motion to print 
the President's message and accompanying doc- 
uments — 

Mr. GREEN said: Mr. President, when, on 
Wednesday last, llie honorable Senator from Il- 
linois [Mr. DocGLAs] addressed the Senate, I 
was taken completely by surprise. I was sur- 
pri.sed not only that he should have made his re- 
marks at that time, but I was still more surprised 
at the manner and the matter of the speech. He 
himself slated, if I recollect correctly, that the 
President had made no recommendation on the 
eubjeat of Kansas. It is a fact known by us all 
that no application on the part of Kansas was 
before Congress in any shape. If, therefore, 
there was neither an executive recommendation 
nor an application upon the part of Kansas, 
wherefcH-e should the subject have been thrust on 
the attention of the country? When practical 
action is required on the part of Senators, the 
views of Senators are expected to be elicited; 
but when neither an executive recommendation 
required any practical action, nor any applica- 
tion on the part of Kansas had been made, it 
seemed to me most extraordinary that we should 
be compelled to engage in an abstract discussion 
with no reference to practical results. It is not 
my purpose to inqinre into the motive of the 
honorable Senator. I am willing to concede, as I 
do, that it was patriotic; but I must think it very 
improper. It was well calculated to prejudice 
the question now pending before the people of 
Kan.sas. An election is to be held on the 21st of 
this month, and the public mind was prepared 
to see the people go forward and express their 
preferences for and against, as the question may 
be presented to them; but his speecli, going as a 
counter manifesto to the just and fair message of 
the Executive of this Government, is well calcu- 
lated, though no doubt not designed, to prejudice 
the question before the people of Kansas,'as well 
as before the people of the country. 

But, sir, whether this question has been right- 



fully or wrongfully brought up for consideration, 
I it is now before us; and justice to the Executive, 
I justice to the question itself, justice to the people 
of Kansa.s, and justice to my own State, which 
cannot fail to feel a deep interest in the proper 
adjustment and final settlement of the question, 
require that I should meet, and, as far as I may 
be able, counteract the positions assumed by the 
honorable Senator from Illinois. 

The honorable Senator from Illinois sets out 
with imputing to the President a "fundamental 
error." Before we can discuss, we must have the 
issue presented. Before our arguments can have 
a practical bearing on the question before the Sen- 
ate, it is necessary that we should understand 
what that question is. In what, according to the 
positions assumed by the Senator from Illinois, 
does this "fundamental error" consist.' I un- 
derstand him to say that the " fundamental error" 
into which he charged the President with having 
fallen, is that the President says there was no 
law either in the Kansas-Nebraska act, in the 
Constitution of the country, or in the common 
usages of the Government, that made it obliga- 
tory on the convention of Kansas to submit tlieir 
constitution to a subsequent vote of the people. 
This is the imputed '•fundamental error." To 
that point I shall direct the attention of the Sen- 
ate. 

It is not for me to say whether the propriety 
of the submission of the slave branch of that con- 
stitution to a separate vote, ought to have been 
considered by t!ie Executive or not. I choose not 
to trace him in the course of his reasoning on the 
subject. I choose rather to notice the conclusion 
at which he has arrived — a conclusion that prom- 
ises a full adjustment of this whole question; that 
promises peace to thecountry; that promises sat- 
isfaction to the North and to the South; and that 
promises to remove a bone of contention over 
which the public mind has been too much ha- 
rassed for the last several years. 

The real practical question, then, which we have 
to consider is this: ought Kansas, when her con- 
stitution shall be presented, be admitted into the 



Union? or ought the consideration of what the 
honorable Senator from Illinois calls a " funda- 1 
mental error" of the President, to be deemed a l 
sufficient reason to keep Kansas out of the Union, i 
and to keep this most unfortunate subject still 
agitating the public attention? This is the real \ 
issue. It is not whether we approve of parts of 
the constitution of Kansas: it is not whether we 
think the qualification required by the convention 
in framing the constitution of Kansas, of twenty 
years' citizenship of the United States in order to j 
be Governor, is right. That is a subject upon \ 
which the people of Kansas alone have the right | 
to decide. j 

It is true the honorable Senator does not say j 
that we have a right to supervise the action of '■ 
the convention of Kansas in that regard. But \ 
he seems to bring up what he regards as objec- j 
tionable parts of their constitution, and traces 
them in such a manner that the public might be 
prejudiced against the result of the labors of the 
convention. In his great anxiety to so present 
that feature in regard to the qualification which 
the Governor of Kansas is required to possess, 
he even misstates and misconstrues the constitu- 
tution of Kansas as presented before us. He says 
" twenty years' citizenship is required." That 
istrue;butisthatacauseof objection? The Sen- 
ator's own State of UlinoLs, when she was admitted 
into the Union, required as a qualification of the 
Governor that he sliould have been thirty years 
a citizen of the United Stales; and surely he will 
not invoke the application of a more rigorous rule 
to Kansas, which, under the peculiar circum- 
stances of the case, requires rather a relaxation 
for the sake of peace and quietude. Surely he 
will not object to the application of the same 
liberality to Kansas, so as to leave that question 
unprejudiced; for if Illinois could come into the 
Union with a constitution requiring the Governor j 
to be a citizen fur the space of thirty years, surely i 
it is no insuperable objection to Kansas that she 
requires only a twenty years' citizenship. So j 
with the State of Missouri — my own State. Her j 
constitution requires the Governor to be a native- i 
born citizen of the United States; and so it is j 
with various other Slates. The constitution of j 
the Slate of Mississippi requires twenty years' j 
citizenship of the United States on the part of j 
the Governor; and a large number of the consti- 
tutions of the Stales require them to be native 
born. The Constitution of the United Slates 
requires the President to be a native-born citizen 
of the United Slates. 

I refer to these facts for the purpose of show- 
ing that, in all times past, such a matter has never 
been urged on the Senate us any reason why the 
application of a Stale for admission into the Union 
ought to be rejected. Perhaps the Senator will 
say, however, that he did not urge it in that view, 
and that he only stated that the people should 
have a right to pass on that question. I shall 
advert to that point after a while. In the same 
connection, however, he uses this language, which 
an examination of the constitution does not war- 
rant: 

" If men think no person should vole or hold office until 
he has been here twenty years, he has a right to think 80." 



The employment of this language on the part 
of the Senator induces those wKo have not ex- 
amined the constitution of Kansas, to believe 
that it requires twenty years' citizenship before 
the right of voting can attach. The Senator has 
fallen into an error. The constitution simply 
requires for the exercise of the nght of suffrage 
in Kansas, that a person shall be a citizen of the 
United Slates, and a free white male inhabitant 
of the State. If this were to go broadcast through 
the land, those who object to the stringent rules 
which the party to which he referred sometimea 
have been held to advocate, would feel greatly 
prejudiced against the Kansas constitution; while, 
if they examine it, and see what its provisions 
are, they will find that the Senator has misstated 
its provisions. 

So on other questions — the subject of banks, 
and the mode of taxation. He animadverted on 
all these points with pleasure, and with a view, 
as it would seem, (though doubtless for no such 
purpose,) at least to point out objections in the 
Kansas constitution, on the subject of banks, as 
well as on the subject of taxation. Now if ho 
concedes, as I know he will concede, that Con- 
gress has no right to consider any of the features 
of the constitution of a State save whether it be 
republican, why need he dwell on anything else? 
It would, if he regarded it as obnoxious, connected 
with the powerful influence of that distinguished 
character which he possesses, spread a prejudicial 
influence abroad on a subject which he admits he 
has no right to consider in "the Senate of the United 
Stales. 

So with regard to one other branch of his ar- 
gument. The ordinance that accompanies the 
constitution is held by some to be extravagant in 
its demands on the Federal Government. It may 
or may not be so. Whether it be right to accede 
to the proposition submitted in the shape of an 
ordinance or not, I shall not now stop to discuss; 
for I hold that it is no part of the constitution of 
Kansas. It is a separate proposition presented 
by the convention of Kansas, and it is matter of 
contract with the Federal Government whether 
we accede to it or not. We may disaffirm that 
contract. In other words, it is a proposition, and 
we may make a counter-proposition. It is a mat- 
ter for consideration, for adjustment; and it is 
no branch or part of the constitution of the State. 

The question which v.'e have to consider is, not 
the qualification required in the Kansas constitu- 
tion for Governor; not the mode in which the 
elective franchise is to be exercised; not the pro- 
visions in regard to banks; not the provisions 
with regard to the mode of taxation. These are 
all subjects with which we have nothing to do. 
They exclusively pertain to the people of Kansas. 
This they have, througli their convention, decided 
for themselves. 

There is but one single legal question to which 
ouraltention can be directed; is it a " republican" 
form of government? As it respects the numbers 
requisite to entitle the people of Kansas to ad- 
mission into the Union, I believe it has never been 
called in question. Certainly the Senator from 
Illinois has not called it in question, and I have 
not heard it called in question by any other Sen- 



ator. I do not understand the Senator from Illi- 
nois to say that the constitution of Kansas is not 
"republican." On the contrary, I have no doubt 
of the fact that all will admit it to be as republican 
as the constitution of any State in the United 
States; as consonant with the principles of repub- 
licanism as any constitution that has ever been 
presented to the American people. If it comes 
before us in that shape — admitted to be repub- 
lican — admitted to have a sufficient population to 
entitle them to admission — admitted that the pe- 
culiar features of the constitution arc questions 
with which we have no concern, wherefore is it 
that the admission of the State into the Union is 
to be resisted and opposed ? For what purpose ? 
What reason is to be assigned ? 

The first reason that is assigned is, that there 
is no " enablin<^act.^' Mr. President, there seems 
to be a want of clear understanding of the relation 
which the Federal Government sustains to the 
Territories. What is an " enabling act.'" Is it 
to impart power to the people of a Territory.' for 
we must remember that a Territory organized, 
constitutes a people. Individuals may live on the 
lands belonging to the United States, and yet not 
be a people. They are individuals scattered over 
tlie fend ; but in a technical and appropriate and 
governmental sense, whenever they are organized 
into a political community they constitute a peo- 
ple. Kansas is apolitical communityand apeople. 
What " enabling act" was required to impart to 
them the power to propose a change in their form 
of government ? What enabling act can give them 
more political and inalienable rights than they 
already possess.' It would be a solecism, a con- 
tradiction, to assert it. Among the inalienable 
rights are " lite, liberty, and the pursuit of happi- 
ness, to secure which governments are instituted, 
deriving their just powers from the consent of the 
governed." Who are the "g^orernerf?" The peo- 
ple of Kansas. From whom, then, will the gov- 
ernment of the State of Kansas derive its just 
powers.' From the "governed," and not from 
your" enabling act." Their power was inherent, 
and all the action of the Federal Government can 
give them no additional political power. That 
inherent power is incapable of transfer; it is 
unchangeable; it is indefeasible; it is original. 
What then.' Does it follow that the people in an 
organized or unorganized shape, living in a Ter- 
ritory, can set u|) an independent government 
when they please ? No; 1 answer most emphat- 
ically, no. They may propose their form of gov- 
ernment; they may shape its features; they may 
parcel out its powers; they may guard the rights 
and interests of the people under the newly pro- 
posed government; but they cannot become an 
absolute sovereignty; they cannot become an ab- 
solute independent State. Why.' Because the 
Territory belongs to the Federal Government for 
the use of all the States. Nothing butthe assent of 
the Federal Government in some manner, shape,- 
orform, will ever impart to them independence and 
sovereignty. The only purpose of an " enabling 
act" to an organized Territory ought simply to 
be o laic of .\ssevt. If it i.s but an unorganized 
Territory, and not a "people," Congress then 
ought to throw them into an organic shape, as 



well as give its assent. This will be found to be 
the true principle, and ought to be the rule to reg- 
ulate the steps of this Government in its dealings 
with the Territories. States come into the Union 
by their own will, and with the assent of the Uni- 
ted States. 

All the power of the Federal Government can- 
not create an independent sovereign State. The 
power of this Federal Government is not to cre- 
ate, but to admit. To " admit" a State, implies 
its existence prior to admission. Thus, what is 
now ordinarily called an " enabling act," is, to 
all intents and purposes, nothing but a law of 
assent. The great Federal Government, in which 
is vested the sovereignty of the Territory, may 
give that assent before or after the organization of 
the proposed new government; it is perfectly op- 
tional with the Federal Government to give it 
before or after such organization, with this single 
difference: when that assent is in the shape of 
what is now called an " enabling act," and when 
the people of the Territory have proceeded ac- 
cording to the principles of that enabling act, and 
created a government, the assent being given, the 
whole sovereignty becomes vested, the independ- 
ent State EXISTS, and then if Congress do not 
admit it, it is a foreign State in spite of all our 
powers. The danger, therefore, is in passing an 
enabling act, not in withholding one. 

Who is it that does not remember the unfor- 
tunate Missouri controversy of 1820.' An " en- 
abling act," as latterly called, had been passed 
for the State of Missouri, in pursuance of which 
Missouri formed its constitution and asked for 
admission. Some quibbles were rtfised, and some 
non-essential points were alleged against its ad- 
mission, and Missouri was well nigh rejected. 
All the Republican Senators and members of the 
House of Representatives at that day — I use the 
term in its old signification, not the new — said, 
" the assent of the Federal Government has been 
given to the act of Missouri. Missouri had cre- 
ated its government in pursuance of an enabling 
act, and was, therefore, sovereign and independ- 
ent; and if Congress had not admitted Missouri, 
that State would have been a legally recognized 
foreign government on the west bank of the Mis- 
sissippi river." 

It is true that the physical power of the Federal 
Government might have sent armies and coerced 
Missouri into submission, but that would have 
converted it into a subjugated State; Missouri 
would not have been, in that case, a free and in- 
dependent State; it would have made it an inferior, 
dependent vassal, subservient, and a subordinate 
member of the Confederacy. According to the 
true principles of the theory of our Government, 
whenever congressional assent to sovereignty and 
independence are conceded, the people of a Ter- 
ritory may act as they please, and it is an inde- 
pendent State thereafter. Now, when assentis 
not given prior to the time of admission, there is 
no danger of that kind of difficulty. 

But, Mr. President, is it so important that an 
" enabling act" should be passed .' The Senator 
thinks so, and refers to instances when such acts 
were passed. Why, sir, Tennessee, Arkansas, 
Michigan, Florida, Iowa, California, Maine, and 



Vermont, eight States — new States, not in the 
original Confederacy — came into tiie Union with- 
out any enabling act on the part of Congress. 
Was Tennessee improperly admitted? It was 
recommended by George Washington. The pro- 
ceedings that were instituted under Governor 
Blount in the then Territory of Tennessee, met 
the sanction of the Republicans of that State. 
Among the members of the convention, that rev- 
olutionary — no, the Senator docs not give it that 
name — that " inegxdar" convention, is found the 
name of Andrew Jackson, of Tennessee. He 
was one of that " ii-regular cohvention:" and 
that "irregular convention," formed in part of 
General Jackson, made a constitution which was 
never submitted to the peo[>le, but was sent up to 
General Washington, tlien Prcsidentof the United 
States; and here is the letter that he sent to Con- 
gress at the time he submitted the constitution of 
Tennessee for their consideration. It will be seen 
■that it harmonizes well with what President Buch- 
anan has said with regard to the constitution of 
Kansas: 

United States, Jipril 8, 1796. 
Gentlemen of the Senate 

and of the House of Reprcsentatices : 

By an act of Con|-ress passed on the 26th of May, 1790, 
it was declared that the inhabitants of tlie territory of the 
United States south of the river Ohio should enjoy all the 
privileges, benefits, and advantages set forth in the ordi- 
nance of Congress for the government of the territory of the 
United States northwest of the river Ohio, and that the 
government of the said territory south of the Ohio should 
be similar to that whieli was then exercised in the territory 
northwest of the Ohio, except so far as was otherwise 
provided in the conditions expressed in an act of Congress 
passed the 2d of,April, 1790, entitled " An act to accept a 
cession of the claims of the State of North Carolina to a 
certain district of western territory." 

Among the privileges, bcn(^tits, and advantages thus se 
cured to the inhabitants of the territory south oi the river 
Ohio, appear to bo the right of forming a permanent consti 
tution and State government, and of admission, as a State, 
by its di'lcgates, into the Congress of the United States, on 
an equal footing with the original States, in all respects 
whatever, when'it should have therein sixty thousand free 
inhabitants: provided the constitution and government so 
to be formed should be republican, and in conformity to the 
principles contained in the articles of the said ordinance. 

As proofs of the several requisites to eiuitle the territory 
south of the river Oliio to be admitted, as a Stale, into the 
Union, Governor Blount has transmitted a return of the 
enumeration of its inhabitants, and a printed copy of the 
constitution and form of govermneiil on which they have 
agreed, v.hich, with his letters accompanying the same, are 
her.with laid before Congress. 

GEO. WASHINGTON. 

It contained no special executive recommenda- 
tion; and, in that respect, harmonizes most beau- 
tifully with the position taken by President Buch- 
anan. The Territory thus had an organic form; 
it was a people. Without any enabling act they 
met, formed a constitution, which was presented 
to Congress and approved, and the State admitted 
into the Union with as much regularity, with as 
much system, with as much order, as has accom- 
panied the movements of any Territory and of 
any people within the compass of our whole 
republic. 

How is it with Arkansas.' The Senator from 
Illinois would have us understand that the move- 
ments in Arkansas seemed to meet the disappro- 
bation of President Jackson. President Jackson, 
who had himself participated in the convention in 



Tennessee, is to be presented to us as though he 
I condemned the proceedings in Arkansas. An 
j examination of the opinion of the Attorney Gen- 
j eral in tbat case, will show the distinction, and 
make it clear as the noonday sun, unless I am 
I greatly deceived in regard to the purport of that 
' opinion: 

I "In tlieexerciseof this right, the inhabitants of Arkansas 
I may peaceably meet together in primai-y assemblies, or in 
I convftntions chosen by such assemblies, for the purpose of 
! petitioning Congress to abrogate the territorial government, 
! and to admit them into the Union as an independent State. 
j The particular form which they may give to their petition 
, cannot be material, so long as they confine themselves to 
I the mere right of petitioning, and conduct all theirproceed 
I ings in a peaceable manner. And as the power of Congress 
j over the whole subject is plenary and unlimited, they may 
j accept any constitution, however framed, which in their 
judgment meets the sense of the people to be affected by it. 
If, therefore, the citizens of Arkansas think proper to ac- 
company their petition with a written constitution, framed 
and agreed on by their primary assemblies, or by a conven- 
tion of delegates chosen by such assemblies, 1 perceive nn 
legal objection to their power to do so, nor to any measures 
which may be taken to collect the sense of the people in 
respect to it ; provided always, that such measures be com- 
menced and prosecuted in a peaceable manner, in strict 
subordination to the existing territorial governmcut, and in 
entire subserviency to the power of Congress to adopt, re- 
ject, or disregard them, at pleasure. It is, however, rcrt) 
ohvioiis that all measures commenced and prosecuted tcith a 
dcsiijn to iuhvert the territorial goiernment, and to establish 
and jiiit in force, in its place, a new ^orcrnincnt, without tke 
consent of Congress, will he unlanful." 

Kansas has never proposed to put in operation 
a State government without the consent of Con- 
gress. They have formed it in subordination to 
the powers of the territorial government. It is 
but an emanation of the territorial government. 
It is to be submitted to Congress. If adtnitted into 
the Union, the constitution lakes effect as the su- 
preme law of that State in subordination to the 
Federal Constitution only; but, if not admitted, 
they do not propose to set up a separate State gov- 
ernment. This, it will be seen, hanmonizes with 
what I said ofl the subject of the assent of Con- 
gress, to wit: wherever any Territory undertakes 
to set up a territorial or State government, in op- 
position to Federal authority, it is rebellion. If 
the present acting, or claiming to act. Governor 
of Utah should undertake to set up a separate 
government,we have the undoubted right to refuse 
our assent, and to subjugate him to our authority 
by the force of the military arm of this Govern- 
me^it. If the people of Kansas were to under- 
take to set up a government in oppos'Uion to the 
Federal authority, the same power could be ex- 
ercised there. But while they do not propose to 
ititerfeie with the Federal Goverinnent, nor to 
interfere with the territorial government until the 
assentof Congress is received, it makes no kind 
of difference whatever. This, too, harmonizes 
with the opinion of the Attorney General, which 
the honorable Senator from Illinois introduced 
and read. 

There are, therefore, eight States in the Union 
that have formed their constitution without an 
enablingact; for two of those States the Senator 
from Illinois voted. California had no enabling 
act. But the Senator undertakes to show that 
though there was no enabling act, yet all the 
steps taken by the authorities of California were 
in subordination to the local government estab- 



lished thei-o, under General Riley. Whether that 
be right or wrong, whether his reference be cor- 
rect or incorrect, I sliall not stop to inquire, but 
this much is true: the action of the convention in 
liie Territory of Kansas is as much in subordin- 
ation to the Federal authority as was tlic action 
in the Territory of California; and if he could 
vote for the admission of California, there can be 
no reason v/hy he may not vote for Kansas with 
the same propriety. If he could vote for the ad- 
mission of Florida, there can be no reason as- 
signed wh)'' he may not vote for that of Kansas. 
If he could vote for Iowa, there can be no good 
reason why lie should not vote, under the same 
circumstances, for the admission of Kansas. By 
liis own deed he is estopped; by his own act he 
is forever estopped tVom allegijig, as a necessary 
prerequisite, an enabling act. Ti>e assent of Con- 
gress may be given at any time; either before or 
after the formation of a constitution. 

There is a peculiar reason for it in the case of 
Kansas. The Louisiana treaty defines and guar- 
antees the rights of the people living in that Ter- 
ritory. The law of Congress, subsequently 
j)assed, made an additional pledge that tlie people 
should have a right to admission at the proper 
lime. The authors and advocates of the great 
Kansas-Nebraska act thought it had added to 
the rights, or reclaimed the rights of the people 
living in organized Territories. Its franiers 
thought they had conferred some principles here- 
tofore denitd to them. If so, under the treaty of 
Louisiana, under the law of Congress, under the 
Kansas act, the right of the people, whenever 
tlieir numbers are sufficient to take preparatory 
steps for the formation of a constitution, and pre- 
sent it for admission into the Union, is conceded. 
They do not present it for approval; they do not 
present it in order to have it indorsed. They 
present it, if at all, for the sake of being admitted 
into the Union. If the constitution is republican, 
we may admit theui; if it is not republican, we 
cunnot admit the in. 

In strict conformity v/ith this doctrine stands 
the Democratic platform to which the Senator re- 
ferred. It says, in emphatic terms, that the peo- 
ple of a Territory should, whenever fhej'- liad 
nunibors sufficient, proceed to form their State 
constitution, and to adopt such institutions as 
they should think proper. 

But the main objection which the Senator has 
presented is, that while he may forego these ob- 
jections, there are other refisons why we should 
not forego either them or any others. My po- 
sition is, that the mere want of an enabling act is 
not an objection; that lawful proceedings in an 
oj-ganized Territory, to form a constitution, are 
regular, in conformity to law, in conformity to 
usage, and I have presented cases just such as the 
Senator has hereto.*'ore indorsed and approved; 
and, consequently, they ought not to be consid- 
ered in the list of objections that he raises against 
the admission of Kansas. 

His chief objection, however, seems to be, that 
the constitution is not submitted to the people. 
On that he dwells; and wherefore? Why, that 
the principle of popular sovereignty required the 
constitution to be submitted to the people? In 



other words, he says that a subsequent vote ovight 
to have been had in addition to what the conven- 
tion has done, so that the people by subsequent 
vote might decide this question of constitution or 
no co)isiitution. Mr. President, if, as the Senator 
from Illinois says, the Kansas-Nebraska act puts 
the slave question where all other questions before 
were, then, in order to see what the rights of the 
people were under tlie Kansas act, we have but to 
ascertain what their rights were on all other ques- 
tions before the Kansas act was passed. 

How were they? Is it true that the people do 
not act, in any case, unless they meet in masi 
meeting? — in a tumultuous assemblage? — or is it 
not in harmony with the genius of republican in- 
stitutions — is It not in strict conformity with the 
Americanism of government that wc act through 
delegates, through agents, through representa- 
tives? The constitution of the Senator's own 
State was not submitted to tlie people of Illinois. 
The constitution of his native State, Vermont, 
was not submitted to the people of that State, 
and yet it is worthy of remark that the constitu- 
tion of Vermont uses this language: "We, the 
people of the State of Verniout, do ordain and 
establish." They ordain aad^establish by their 
delegates, by their representatives. So with Illi- 
nois. In its constitution tlie words, " we, the 
people," are used; and yet the people never acted 
upon it, save tlirough their agents, their delegates 
ill convention assembled. In the State of Illinois 
the constitution says, " all prosecutions shall be 
in the name of the people of the State of Illinois," 
not in the name of the State. The people stand 
as prosecutors. I believe the first time I ever had 
the honor to make the acquaintance of the verj' 
distinguished gentleman was while he presided 
on the bench in the city of duincy. There was 
a prosecution conducted in tlie name of the peo- 
ple of the State of Illinois. Was that prosecution 
by the people, in their own proper person ? No; 
the people were ably and well represented on the 
bench by the distinguished Senator from Illinois; 
the people were represented in tlie grand jury 
room by selections made for their purpose; the 
people were represented by the prosecuting attor- 
ney, a distinguished gentleman selected for that 
purpose. It was all done in the name of the 
people, in behalf of the people, for the people, 
but done by the people's agents and representa- 
tives. 

Mr. President, it is not only so in these in- 
stances, but, as I before remarked, it is the great 
Jlmericanism of Government more peculiar in thfi 
United States than anywhere else. The people 
act through agents; and I believe it to be a uni- 
versal rule of agencj*, that where there is a gen- 
eral power given, the principal is bound by all the 
acts of the agent, unless there be a reservation 
of a right of submission to the principal for hi* 
approbation. 

I have before me a list of States, showing that 
Kansas was not peculiar in this respect. ^ ma- 
jority of the conslilulions of the Slates forming this 
Union were adopted by conventions, and never sub- 
mitted to the people! More than this; the very 
opinion of the Attorney General, read by the 
Senator from Illinois, withrefurence to the Ark- 



8 



ansascase, (his own authority,) says the people 
may, in primary assemblies, or through delegates 
chosen by them for that purpose, form a consti- 
tution and send it to Congress for their consid- 
eration. 

We have, then, the gentleman's own State, na- 
tive and adopted; we have a large majority — the 
exact number I will not state— of all the States 
of this Union, whose constitutions were formed 
by the people, through their agents, and without a 
submission of them to a vote of the people ; and in 
a minority of instances only, h&ve the constitutions 
of States been submitted to the people for their 
approbation or rejection. More than that; we 
have the Senator's own committal in his support 
of the Toombs bill at the last Congress. The 
Toombs bill was taken by the honorable Sena- 
tor, who was then chairman of the Committee on 
Territories, pressed by him, and passed through 
the Senate. That bill did not contain any clause 
requiring the constitution to be submitted to a 
vote of the people. The bill which he had first 
introduced did contain such a requirement; and 
yet, when the two were put side by side and he 
was called on to choose between them, he took' 
that which had no such provision in it, thus leav- 
ing it for the convention of the Territory to decide 
as they might deem proper. 

If the Senate of the United States, and if the 
father of the Kansas-Nebraska act — if the great 
advocate of popular sovereignty could introduce, 
support, and cause to be passed, an enabling act 
permitting the convention of Kansas to make 
their constitution, and to make it Jinal, to ordain 
and establish it without submitting it to the peo- 
ple, surely, when the people of Kansas, through 
their territorial government, came to act on the 
same subject, if they imitated the honorable Sen- 
ator, and passed a similar bill, they ought not to 
be held up to public scorn and indignation. They 
had an "illustrious predecessor;" they had a very 
distinguished example in the person of the Sen- 
ator from Illinois, and if they but followed that 
example, they ought not to be held up to public 
scorn and indignalion. I think they acted wisely 
in submitting the matter to the convention which 
represented the people. It is better for the people 
of Kansas to be heard through their representa- 
tives than for the people of Illinois to interfere in 
Kansas rriatters through the able Senator from 
that State, or the people of Missouri through my- 
self or my colleague. 

We have heard much of popular sovereignty 
and popular rights, but they seem to be frittered 
away and cut down, limb after limb. First you 
cut off one, and then another, until you leave 
nothing whatever to boast of when you go before 
the people of the country and speak of the great 
merits of the Kansas-Nebraska act. If you can 
tie up the people's hands, and say to tiiem, " You 
shall do tnis,"are you carrying out the principles 
of the Kansas act? The act says they may do it 
in any manner they please. They did please to 
adopt a constitution finally in convention, as did 
Tennessee, Illinois, and Vermont. Now it is 
gravely proposed tiiat the Senate and House of 
Representatives .shall say the people of Kansas 
did not please to do it in a way which Congress 



is pleased to consider right, and, therefore, it shall 
be undone, thus trampling under foot the very 
principle which the Senator said had been sanc- 
tioned in the bill, that they might do as they 
pleased; that they might adopt a constitution in 
any manner and form they thought proper; that 
they might establish their domestic institutions in 
their own way. The express language of the bill 
is, " in their oicn u'ai/" — not the way I might ad- 
vocate, not the way the Senator from Illinois 
might advocate, not the way the North, or the 
South, might like, but the language, the spirit, 
the principle, the essence of the bill, is " in their 
oivn way." The people of Kansas have adopted 
their oion way, and that " way" is in strict con- 
formity with the example set when the Senator 
from Illinois supported the Toombs bill. It was 
to let the convention, as the representatives of the 
people, do as they pleased on the subject pre- 
sented to them. That convention did as tney 
pleased on the subject, and now it is formally pro- 
posed to revise, reform, remodel, and recast, all 
the action that has taken place, although the peo- 
ple of Kansas, through their convention, have 
done their work only " in their own way. " I can 
seenoconsislency in this. But I do see in it a prin- 
ciple set up in opposition to what we have been 
told was the principle of the Kansas-Nebraska 
act. 

It has, however, been intimated by the hon- 
orable Senator from Illinois that the Kansas-Ne- 
braska act itself required the constitution to be 
submitted to the people of Kansas after its com- 
pletion by the convention. On that point, I join 
issue. The act makes no such requirement. It 
contains no such obligation. On one point, I 
confess I did not distinctly understand the posi- 
tion of the Senator, and I hope, therefore, he will 
not consider me intrusive if I ask him how I am 
to understand him on the subject of the Govern- 
or's interference in regard to submission or non- 
submission of the constitution ? 

Mr. DOUGLAS. I declined to discuss that, 
because the Governor had acted under the instruc- 
tions of the President. 

Mr. GREEN. Then I understand the Senator 
as taking no position on the point, whether the 
executive of the Territory did right or wrong 
when he proposed that the whole constitution 
should be submitted. My view is, that, if he 
says the Governor did right, it conflicts with the 
principles of the Ka«sas-Nobraska act, and lets 
the agent of the Federal Government interfere to 
do what he said the people of the Territory might, 
uninfluenced,anilofright,do"intlieirou'Jiway." 
If the Senator says the Governor did wrong; if the 
Senator says the Governor of the Territory had 
no right to advise on this point, that is an admis- 
sion that the Governor's conduct is not justified 
by the provisions of the Kansas-Nebraska act. 
Because, if that act required the submission of 
the constitution to a fair and uninfluenced popular 
vote, it was the official duty of the Executive to 
see that part of the bill, like every other, exe- 
cuted and carried out. Here is a dilemma, and I 
leave the Senator to take cither horn. If he says 
the Governor did right, he permits a Federal func- 
tionary to dictate to the people, when the language 



9 



of the act is, that they may act in their own way. 
If he says the Governor did wrong, it is an ad- 
mission that the act did not require the submis- 
sion of the constitution. 

But we are told that the people have been de- 
ceived in this matter; that pledges and promises 
were made to the people of Kansas which have 
been broken and violated. On questions of fact, 
about which there is great controversy, and upon 
which we have no evidence, I do not deem it 
proper to dwell at all. Who made the pledges 
alluded to, and to v.'hat extent were they made? 
I apprehend it will be found that the Senator from 
Illinois is mistaken on this point. That an indi- 
vidual pledge in favor of submission may have 
been made, I do not pretend to controvert; but 
that it was general, or very extended, I wholly 
deny. We have no evidence of it. It is true that 
Mr. Stanton, who was acting Governor of the 
Territory before Mr. Walker arrived, made use 
of this language. 

Mr. DOUGLAS. From what book is the 
Senator about to read? 

Mr. GREEN. From the "Political Text- 
Book," a compilation by Mr. Cluskey. 

Mr. DOUGLAS. It i"s a private book. 

Mr. GREEN. Yes; it is not a public docu- 
ment. The correspondence and proclamations 
have not yet been officially printed; but I suppose 
the genuineness of what I am about to read will 
not be controverted. 

Mr. DOUGLAS. I presume not. 

Mr. GREEN. Mr. Stanton, before the people 
had voted for delegates to the convention, used 
this language, in speaking of the act providing for 
the convention: 

" In this light the act must be allowed to have provided 
for a full and fair expression of the will of the people tlirou<;h 
the delegates who may be chosen to represent them in the 
constitutional convention." 

Here, before the members of the convention 
were elected, the idea of the acting Governor is 
promulgated to the people, that they have a full 
and fair opportunity to speak through the conven- 
tion. What else? 

" I do not doubt, however, that, in order to avoid all pre- 
Ujxt for resistance to the peacclnl operation of this law" — 

Not because there is any obligation to do so, 
but to avoid all pretext for complaint — 

" the convention itself vpill,in some form, provide for sub- 
mitting the great distracting question regarding their social 
institution, which has so long agitated the people of Kansas, 
to a fair vote of all the actual bona fide residents of the Terri- 
tory, with every possible security against fraud and violence. 
If the constitution be thus framed, and the question of differ- 
ence thus submitted to the decision of the people" — 

That is, if the slavery question be submitted 
to the people — 

" I believe that Kansas will be admitted by Congress with- 
out delay as one of the sovereign States of the American 
Union ; and the territorial authorities will be immediately 
withdrawn." 

Now we see what was the understanding of 
the people before the election of the convention. 
It was this: the people can be heard through del- 
egates if they choose; now is the time for them 
to exert their power; if you have any preferences 
on the subject, come up and vote; "but," says the 



acting Governor, "as a mere question of policy, 
to avoid all pretext of complanit, let the slavery 
question be submitted to a separate vote." Gov- 
ernor Walker is a little broader in his language, 
but he substantially takes the same position. 
There seems to be in the mind of Governor 
Walker a confusion of ideas. He does not seem 
to apprehend that they could have a separation 
of the slave question from the body of the con- 
stitution. The policy or propriety of this sepa- 
ration is not a matter for me to consider. It is a 
matter for the consideration of the people of Kan- 
sas, who have the power to settle all these ques- 
tions " in their own way," and I am the last who 
would trample under foot that principle which 
has been so much lauded by the honorable Sen- 
ator from Illinois. While the Governor has the 
confusion of ideas of which I have spoken, it is 
very manifest that his whole attention was directed 
to the slavery question as the proper matter for 
submission to the people. Before the election of 
delegates took place he arrived in the Territory, 
and published his inaugural address, in which, 
talking to the whole people of Kansas, he said: 

" You should not console yourselves, my fellow-citizens, 
with the reflection that you may, by a subsequent vote, 
defeat the ratification of the constitution. Although most 
anxious to secure to you the exercise of that great consti- 
tutional right" — 

He does not say it is a legal right emanating 
from the Kansas-Nebraska act, but a constitu- 
tional right. I should like to have him, or any 
other man, show me the clause of any constitu- 
tion, State or Federal, that requires the people of 
a new Territory, in forming the first constitution 
under which they act, to submit it, or even any 
part of it, to a subsequent vote of the people — 
" and believing that the convention is the servant and not 
the master of the pnople,yet I have no power to dictate the 
proceedings of that body." • 

They were acting under a law which said the 
people might settle all these questions in their 
own way. The Governor adds: 

" I cannot doubt, however, the course they will adopt 
on this subject. But whyincur the hazard of the preliminary 
formation of a constitution by a minority, as alleged by you, 
when a majority, by their own votes, could control the 
forming of tliat instrument?" 

This shows that he did not regard it as a fixed 
fact that the law, or any other power, could induce 
the convention, necessaribj, to submit the consti- 
tution to a popular vote. His argument was 
advisory. Addressing those who were disposed 
to keep aloof, he says to them, " If you have the 
majority, why not go to the polls, secure the 
convention, and have a constitution made in the 
manner you prefer?" May I not say that they 
refused to participate in the election from one of 
two considerations; either they knew that they 
were a minority of the Territory, or they were 
standing out in open rebellion to the legal author- 
ities, defying both the territorial and the Federal 
Government. 

The honorable Senator's speech conforms to 
precisely this position. He admits that the con- 
vention was regularly called, in pursuance of law, 
acting in conformity both to Federal and local 
authority. Why was it opposed ? Was it for any 
wise purpose ? Was it in order to accomplish any 



10 



good end ? The opposition was in order to keep 
the subject open. It was a captious, a factious 
opposition. It was an opposition from a party 
composed of two elements which have been dan- 
gerous to the peace of our western country, unit- 
ing, on the one hand, funatacism, with a hope of 
pecuniary reward on the other. Fanaticism is 
sterile. Fanaticism is barren. Fanaticism is un- 
productive. Fanaticism will die outof itself when 
the sober reflection of the people comes round. 
To keep up that fanaticism ihey unite with it an- 
other element — the element of wild speculation, 
the hope of pecuniary gain. The union of these 
two elements has fanned the flame, endangered 
the Government, hazarded our peace, rendered 
insecure our property, alienating the feelings of 
brother from brother, because they happen to 
live on different sides of an imaginary line. I 
hope to see this union of elements broken down. 
I hope to see the Kansas embroglio ended; ended 
in conformity with law; ended in conformity v/ith 
the action of the legal convention of the people; 
ended by giving force and effect to a constitution 
that has been as regularly, as honestly, as fairly 
agreed on as any constitution that this Govern- 
ment finds within the range of the thirty-one 
States. Should Kansas be admitted; should the 

Eeace of the country be reestablished; should this 
one of contention be taken away forever; town 
lots, land investments, and the other means of pe- 
cuniary profit broken down, the fanatical excite- 
ment will cease and determine. It is the hope of 
some to keep up the excitement, and I am sorry 
to see the course of the honorable Senator from 
Illinois who has fought for us so long — not for 
" the slave power," but for justice, for equality 
north and south, for equality without reference to 
locality, for great principles. Knowing that he is 
still wedded to these principles,! am sorry to see 
his course calculated to give that fanatical ele- 
ment the benefit of his powerful talents. This is 
tlie real cause of my regret. 

It is said — and I throw in the expression here 
to let my view be known, and not as material to 
the matter under consideration — that the law of 
climate has dedicated Kansas to freedom, mean- 
ing thereby that it is not adapted to African 
slavery. That may be so or not. I am not a 
very good judge of climate, and I do not believe 
the Senators present are very good judges of the 
climate of Kansas. I do not think many of them 
have seen it, or have had very accurate reports of 
the range of the barometer and thermometer there 
for the last few years. What I say is, that if the 
law of climate is to determine the question of 
slavery in any Territory within the limits of the 
United States, where the two races are thrown 
together, I am content to trust it to that law of 
climate, without any coercive law, without any 
law of Congress, without any territorial law, 
without any State law. Let me appeal to my 
northern friends who believe there is so much 
potency in the law of climate, the law of produc- 
tion, the law of vocation, the law of pursuit; if 
these be sufiicient, open your northern States and 
sec whether you will not soon have a few of our 
slaves there performing menial services. Whether 
that be true or not, is it not well to leave Kansas 



to the people of Kansas, to the voters of Kansas .' 
If they are willing to trust this matter to the law 
of climate they are settling it in their own way. 
If they are determined to have a positive prohibi- 
tion of slavery in their constitution they are set- 
tling it in their own way, in conformity with the 
law which gave them an organic form. Those of 
us who boasted of the rights they had under the 
law, should be the last to complain of the manner 
in which they exercise those rights. 

I know, however, that there is one thing greatly 
complained of by various persons, and which is 
regarded by some as a sufiicient reason why Kan- 
sas ought to be kept out of the Union; while 
others, who do not go to that extreme, express 
much regret on the subject — I allude to the fact 
that the whole constitution has not been sub- 
mitted to the popular vote. I hold that there was 
no necessity for any such submission. If after 
the convention expressed their judgment, it was 
proper, as a mere matter of policy or prudence, 
to submit any question to a separate vote of the 
people, they ought to submit the real bone of 
contention. I hold further, that the submission 
of the slavery question in the manner in which 
it has been submitted, is fairer, better calculated 
to collect the real will and judgment of the peo- 
ple, than if the whole constitution had been sub- 
mitted. Suppose the convention had adopted a 
constitution prohibiting slavery, and had sub- 
mitted it to the people as the Senator from Illinois 
thinks the law required. If this had been done, 
and my friend from Mississippi [Mr. Brown] 
lived there, he would have been compelled to vote 
against slavery or against the constitution. When- 
ever many questions are mixed up together, and 
they are all presented as an entirety, neither one 
of them has a fair expression of the people who 
thus pass judgment on them. So far is this prin- 
ciple known to be correct, that the constitution 
of Louisiana requires that every law shall em- 
brace but one subject, which shall be stated in ita 
title. 

Mr. BIGLER. That feature is in the new con- 
titution of Kansas. 

Mr. GREEN. It is in the constitution of Kan- 
sas. 

Mr. GWIN. And of California. 

Mr. GREEN. If the matter were investigated, 
I think it would be found that the same provision 
exists in many other States. The object is to pre- 
vent "log rolling," and to insure a fair, honest 
expression of the people or their representatives 
when they pass judgment on any subject. You 
may put together in an improvement appropria- 
tion bill many items, neither one of which has 
sufiicient intrinsic merit to receive the assent of 
Congress; but tie them together, and perhaps you 
can pass all. If the slave question had been tied 
to the suffrage question; the governor's qualifi- 
cation question; the taxation question; the bank 
question; and if I had been a citizen of Kansas, 
I should have been compelled, in order to vols 
for holding negroes in Kansas, to swallow all the 
objectionable features in every other branch of 
the constitution. To submit a single question is 
tlie only fair way, the only just way, the only 
simple, certain method of collecting the public 



11 



will. There is uncertainty in all human proceed- 
ings. The people may not come to the polls; the 
representatives may not do their duty; but \vc 
proceed on the idea that there is a just principle 
involved ; and if the principle be just, and the peo- 
ple have an opportunity to carry it out, and do 
not carry it out, but forfeit their rights, it is their 
misfortune, not ours; and our sympathies are 
l)Iunted wh.'ii we consider that their passions 
were the sole cause of the grievances of which 
they complain. 

The constitution is not submitted to the people 
of Kansas. I know the Senator undertook to 
prove that the people were placed under coercion, 
that they were compelled to go to the polls and 
vote, and that before they could vote on the slave 
question, they were compelled to vote for the con- 
stitution. If the whole constitution had been 
submitted before they could vote for or against 
slavery, they would have been compelled to 
vote in the manner which the Senator represented 
t\s objectionable, which he animadverted upon, 
which he censured and condemned. If the whole 
constitution had been submitted, the voter, in 
order to vote for slavery, would have been com- 
pelled to indorse every feature of the constitu- 
tion; and, in order to vote against it, would have 
been compelled to vote against the other features 
of the constitution, and thus leave him without a 
State government. The anxiety to get a State 
government might be strong enough to induce him 
to forego his objections to other branches of the 
constitution, and hence, as I before remarked, the 
mode of submission adopted by the convention 
was the only simple, fair, and just method of 
(!ollecting the popular will upon the slavery ques- 
tion. In the convention of California, a propo- 
sition was made to submit the slavery question 
to a separate vote of the people. The conven- 
tion was anxious not to endanger the admission 
of the State into the Union. They did not be- 
lieve a majority of their people desired slavery, 
and therefore they did not submit it as a separate 
question, but they submitted the whole consti- 
tution to a vote of the people of California. It 
came up here, and we all know tiiere was a great 
deal of complaint on the part of northern as well 
as southern Senators and members in consequence 
of the non-submission of the slavery question. 

By an examination of the schedule, framed by 
the Kansas convention, it will be seen that the 
constitution itself is not submitted. The Senator 
is mistaken when he says that tlie constitution 
is submitted, and that the people are required to 
vote for it. He says the constitution receives 
its vitality and takes effect from its ratification. 
The Senator is entirely mistaken. It never does 
take effect until Kansas shall be admitted into 
the Union by Congress. " But," says the Sen- 
ator, " the schedule says the constitution is to 
be submitted to the people." Yes. For what 
purpose? For ratification. What is the mean- 
ing of " to ratify ?" It is to settle, to fix. There 
is a part of the constitution not settled, not fixed, 
and that must be ratified. That question is to be 
passed upon by the people, when they say at the 
polls whether they will retain a provision sanc- 
tioning African slavery, or ■will strike it out. 



They are to settle, fix, ratify that unsettled, un- 
fixed, unratified part. That is all the article pro- 
vides for. We are not to take a mere expression, 
but must take the purport of the whole article. 
If a logician, or a judge, or a statesman, under- 
takes to construe the meaning of that article, he 
takes the whole of it together, and so taking it, 
what does he find ? That nothing is to be rati- 
fied, fixed, settled; but the unratified, unfixed, 
unsettled part, which is whether slavery shall be 
retained in the constitution or not. There is to 
be no decision on any part of the constitution, 
exc(!pt that which relates to slavery. 

The Senator from Illinois, however, seems to 
think that each voter must first vote for the con- 
titution, before he can vote for or against sla- 
very. That is another mistake. The voter does 
not vote for or against the constitution. He sim- 
ply votes a ballot which is to be counted for or 
against slavery. If he votes the ballot contain- 
ing the words " constitution with slavery," it is 
to be counted in favor of slavery; but if he votes 
"constitution with no slavery," it is to be counted 
in favor of striking out the article in the consti- 
tution providing for slavery. The only question 
-submitted is. Will you, or will you not, have in 
the constitution of Kansas a clause sanctioning 
slavery.' Is the writing of the word "constitu- 
tion" on the ballot to be construed as making the 
voter vote for the constitution .' Then I can show 
that, if a man in Louisiana voted on the adoption 
of their new constitution, he was involved in this 
seeming contradiction. The constitution of Lou- 
isiana was submitted to the people, under a sched- 
ule which required, "each ballot shall be indorsed 
'the constitution accepted,' or ' the constitution 
rejected.' " There would be just about as much 
plausibility in saying that a voter in Louisiana 
was compelled to vote first for the constitution 
and tlicn for its rejection, or first for the consti- 
tution and then for its acceptance, as in saying 
here that a man in Kansas is to vote first for the 
constitution and then for or against slavery. The 
question submitted in Louisiana was the accept- 
ance or rejection of the constitution. The ques- 
tion submitted in Kansas is the insertion or strik- 
ing out of an article sanctioning slavery. That 
is the sole question to be decided. 

The opposition party in Kansas — I do not know 
what title they assume to themselves — deny that 
the constitution is submitted, and the Senator 
makes an issue with them. Those who live on 
the ground, who know what has been done, say 
that the whole constitution is not submitted. I 
say there was no more necessity for its submis- 
sion than there was for the submission of the con- 
stitution of Illinois. The people of Kansas acted 
through their representatives. Those represent- 
atives had power either to adoi)t a constitution 
finally, or simply to make a proposition, and 
submit it for the consideration of the people. 

There is nothing novel in the positions which 
I have stated. They arc in conformity with the 
past action of the Government. I have before me 
statements showing what States have been ad- 
mitted with an enabling act, and those admitted 
without any such act having been previously- 
passed. 



12 



The following States were authorized to form 
constitutions by acts of Congress /jreviows to their 
admission: Ohio, Louisiana, Indiana, Missis- 
sippi, Illinois, Alabama, Missouri, and Wiscon- 
sin. The States for which no enabling act was 
previously passed, authorizing the formation of 
a constitution, were Vermont, Tennessee, Maine, 
Arkansas, Michigan, Florida, Texas, and Iowa. 
I have also a list of all the new States admitted 
since the Federal Constitution went into oper- 
ation in 1789, showing what States were organ- 
ized without the previous authority of Congress, 
and what States submitted their constitutions to 
a vote of the people, after being framed by their 
conventions. This throws important light on the 
past history of the Government, and that past 
history i^ in strict accordance with the views I 
have advanced. 

For Vermont, the constitution was formed by 
a convention, in July, 1777. It was revised by a 
convention December 25, 1777, without authority 
of Congress. "The constitution was not ratified 
by the people." I quote from Thompson's "Ver- 
mont," part 2, page 105. The appUcation for 
admission was made February 9, 1791, and the 
State was admitted March 4, 1791, as I find from 
the Statutes at Large, vol. 1, page 191. 

Kentucky applied for admission through the 
delegates of a convention, December 9, 1790; her 
constitution was not then formed. My authority 
is the appendix to th3 House Journal, vol. 1, 
pages 411-12. She was admitted June 1, 1792; 
her constitution was laid before Congress, No- 
vember 7, 1792, as I learn from the House Jour- 
nal, vol. 1, page 614. There is no evidence that 
the constitution was submitted to a vote of the 
people. 

For Tennessee, the constitution was formed by 
a convention without authority of Congress, Feb- 
rury 6, 1796, as I learn from American State 
Papers," miscellaneous, "vol. 1, pages 146-7. She 
applied for admission, April 8, 1796, as is shown 
by Senate Journal, April 11, and House Journal 
April 8, 1796. She was admitted June 1, 1796. 
The constitution was not submitted to the people, 
but it was forwarded to the Secretary of State, as 
I learn from theannals of Tennessee, pages 656-7, 
and the history of Tennessee, page 471. 

For Ohio, the constitution was formed by a con- 
vention, under authority of Congress, November 
29, 1802, as is shown by the Statutes at Large, 
vol. 2, pages 173, 201. She applied for admis- 
sion January 7, 1803, as is shown by Senate 
Journal, vol. 3, page 251. She was admitted 
February 19, 1803, as I find in the Statutes at 
Large, vol. 2, page 201. The constitution was 
not .submitted to the people, as I learn from 
Howe's Historical Collections of Ohio, page 16. 

In Louisiana, the constitution was formed by 
a convention January 22, 1812, under authority 
of Congress of the date of February 10, 1811. 
I refer to the Statutes at Large, vol. 2, page 641. 
She was admitted April 8, 1812, and there is no 
evidence that the constitution was submitted to 
a vote of the people. 

The constitution of Indiana was formed by a 
convention June 29, 1816, under authority of 
Congress, as 1 find in the Statutes at Large, vol. 



3, page 289. She was admitted December 11, 
1816. I quote from the Statutes at Large, vol. 
3, page 399. Her constitution was submitted to 
Congress June 10, 1817, as is shown by the 
House Journal, second session, Twenty-Fourth 
Congress, page 180. There is no evidence that 
the constitution was submitted to a vote of the 
people. 

The constitution of Mississippi was formed by 
a convention August 15, 1817—1 again refer to 
the Statutes at Large, vol. 3, page 472 — under 
authority of Congress. (Statutes, vol. 3, page 
348.) Her constitution was submitted to Con- 
gress December 4, 1817. She was admitted De- 
cember 10, 1817, (Statutes at Large, vol. 3, page 
472,) and there is no evidence that the constitu- 
tion was submitted to a vote of the people. 

The constitution of Illinois was formed by a 
convention August 26, 1818, under authority of 
Congress — (see Statutes at Large, vol. 3, page 
428;) submitted to the House of R.epresentatives 
November 7, 1818, and admitted December 3, 
1818. (Statutes, vol. 3, page 536.) There is no 
evidence that the constitution was submitted to 
a vote of the people. 

The constitution of Alabama was formed by 
a convention August 2, 1819, under authority of 
Congress, (Statutes at Large, vol. 3, page 489;) 
her constitution was submitted to the House of 
Representatives December 6, 1819; and she was 
admitted December 14, 1819, (Statutes at Large, 
vol. 3, page 60S.) There is no evidence that the 
constitution was submitted to the people. 

Theconstitution of Maine wasformed by acon- 
vention without authority of Congress, October 
29, 1819. Her constitution was submitted to Con- 
gress, Decembers, 1819, (see House Journal, first 
! session Sixteenth Congress, pages 18-60,) and 
j she was admitted, March 15, 1820. The consti- 
tution was submitted to a vote of the people, as 
: I learn from Williamson's History of Maine, 
i vol. 2, page 674. 

I The constitution of Missouri was formed by a 
I convention, 19th July, 1820, under authority of 
Congress, (Statutes at Large, vol. 3, page 545) 
I Her constitution was submitted November 16, 
[ 1820. One of my authorities is Mr. Lowndes's 
I report, November 23, 1820, (American State Pa- 
j pers, " Miscellaneous," vol. 2, page 625.) The 
! joint resolution admitting the State on a " certain 
: condition," was approvod March 2, 1821. The 
condition was accepted, and the State admitted 
by proclamation of the President, of August 10, 
I 1821. There is no evidence that theconstitution 
was submitted to a vote of the people. 
i The constitutionof Michigan was formed by a 
I convention under the authority of the ordinance 
j of 1787, and without the authority of Congress. 
I It was submitted to and ratified by the people, 
(see Lammon's History of Michigan, pages 241- 
243; also. Senate Documents 5 and 211, Twenty- 
Fourth Congress, first session, and Reports of 
Committees of House of Representatives, first 
sessionTwenty-Fourth Congress, 380.) She was 
admitted on the condition that she should amend 
her constitution so as to change her boundary, 
(Statutes at Large, vol. 5, page 49.) 
The constitution of Arkansas was formed by 



13 



a convention without authority of Congress. I 
refer to House Documents, Twenty-Fourth Con- 
g;ress, first session , No . 164 ; Niles 's Register, vol . 
49, page 243, for Attorney General's opinion; and 
for debates, to " Congressional Debates, "vol. 12, 
parts 1 and 2. She was admitted with a consti- 
tution, by joint resolution, June 15,1836. The 
constitution was pot submitted to the people. 

The constitution of Florida was formed by a 
convention without authority of Congress, and 
submitted to the people. (See House Doc. 208, 
Twenty-Fifth Congress, third session, and Stat- 
utes at Large, vol. 5, page 742.) She was admit- 
ted with a constitution, March 3, 1845. 

The constitution of Wisconsin was formed by 
a convention under authority of Congress. (Stat- 
utes, vol. 9, page 56;and House Doc. 49, Twenty- 
Ninth Congress, second session.) She was ad- 
mitted on certain conditions. (Statutes, vol. 9, 
page 178.) The constitution had not been sub- 
mitted to the people previous to her application 
with a constitution. For debates see Congres- 
eional Globe and Appendix, Twenty-Ninth Con- 
gress, first and second sessions. 

The constitution of Iowa was formed by a con- 
vention on the 18th May, 1846, without authority 
ot' Congress, and was submitted to the people. 
(See House Doc. 16, Twenty-Ninth Congress, 
second session, page 17.) She was admitted with 
her constitution, March 3, 1845. 

The constitution of California was formed by 
a convention without authority of Congress, and 
it was submitted to and ratified hy the people. 
(See Senate Mis. Doc. 68, page 14, Thirty-First 
Congress, first session. i She was admitted Sep- 
tember 9,1850. 

I have thus, as briefly as I could, undertaken 
to show, first, that Kansas is, under the Louis- 
iana treaty, under the law of Congress, under the 
Kansas-Nebraska act, under the special pledge of 
the Democratic party in the Cincinnati convention , 
entitled to admission, having now a republican 
form of government; second, that the convention 
was legally and fairly called, sanctioned by the 
Federal authorities, acting in conformity with the 
territorial government, not in conflict, not in 
antagonism, not in opposition. Third, I have 
shown that the presumption is that the conven- 
tion fairly and truly represented the people and 
reflected their will. On this point we have heard 
of broken pledges and violated promises. We 
have heard of vows that have not been fulfilled, 
but we have no evidence on the subject. 

I heard the Senator from Illinois also make re- 
marks here touching what would be the final re- 
sult of the submission of the slave question; that 
he had no doubt " returns" would come in, inti- 
mating that he believed frauds would be perpe- 
trated. But eight montlis ago, who so loud, so 
forcible, and so eloquent as the Senator from Illi- 
nois in denouncing the party that had insinuated 
fraud ! On what evidence is it that he would in- 
sinuate that frauds will be committed in the re- 
turns that are to come in when the question of 
slavery shall be submitted. I have no right to 
impute fraud. I never will impute fraud. Fraud 
is to be proved, not presumed. When the honor- 
able gentleman occupied a place on the bench, if 



an attorney had made an argument like that, he 
would be ready almost to strike his name from 
the roll of attorneys. Is there any evidence, or 
are there any facts developed in this case which 
would justify him in inferring or presuming fraud? 
None that I have seen, and he does us injustice 
if he has it in his possession and retains it as a 
secret; it ought to be developed; it ought to come 
Defore the country in a tangible shape, for we are 
as much responsible for our action, when that ac- 
tion depends on facts, as the honorable Senator 
himself. 

The legal presumption is, that the representa- 
tive reflects the will of the represented. There 
is no evidence before us conflicting with that legal 
presumption. The election has not yet taken 
place. Is there any preparation for fraud.' Have 
schemes been concocted, have plans been devised 
by which fraud is to be perpetrated in the voting 
upon that question ? I will not believe it in ad- 
vance of the fact itself. Is it for that reason the 
honorable Senator thinks this whole matter should 
be reversed, the whole subject thrown back, and 
a complete revival of the complication of difficul- 
ties that have beset us on our western border? Is 
it because of this anticipated fraud ? I have shown 
it cannot be because of the want of an enabling 
act, for he has voted the other way in several in- 
stances. I have shown that it cannot be for the 
want of submitting the whole question to the 
people, because he has voted the other way in 
several other instances. I have shown that this 
convention was legally and constitutionally called. 
That he admits. I have shown that the legal pre- 
sumption is, that they reflect the will of the peo- 
ple. Is there then any i-ebutting evidence? There 
is nothing else in the preceding part of the argu- 
ment to justify his now separating from us, and, 
when we come to this bifurcated road, his taking 
the left hand. Is there any reason why he should 
do it on this simple, anticipated idea of fraud, on 
which there is no particle of evidence before us? 
No; the legal presumption still stands unassailed. 
The legal presumption is still potent enough to 
justify our action on it, and we must act on it. 
I In the next place, I have shown that the con- 
; vention was under no obligation, imposed either 
: by law or usage, to submit the constitution to a 
vote of the people. Further, I have shown, I 
think, that a majority of the States entered the 
Union with constitutionsnotpreviously submitted 
to the people. If Kansas has copied the example 
set by a majority of its elder sisters, surely nothing 
will be urged in complaint against Kansas because 
it did not follow the minority. It is true, I heard 
the Senator commending the rule, which he says 
is found in the Minnesota bill. 

Here I will remark that, as far as I have ex- 
amined the law — and I have examined every 
case I could — I find, from the beginning of the 
Government, in 1789, down to the present day, 
there never was a prerequisite, even where Con- 
gress passed an enabling act, that the result of 
the convention should be submitted to the people, 
save in the Minnesota bill. It was not in the 
Ohio bill; it was not in the Indiana bill; it was 
not in the Illinois bill; it was not in the Alabama 
bill; it was not in the Mississippi bill. The other 



14 



States were formed on their own responsibility, 
without an enabling act. In none of those en- 
abling acts — not even in the Wisconsin bill — was 
there a provision requiring the Constitution to be 
submitted to the people. In no bill, save one, 
that ever passed Congress was any such provision 
contained. If the convention of the Territory of 
Kansas deemed it proper to copy the example 
which Congress had set, which a majority of 
■ister States had set, I can see in this no cause of 
objection to Kansas at our hands. ' 

Again, I have shown that the only question 
about which there is any controversy is separately 
•submitted to a fair vote of tlie people. About 
this I have no doubt or controversy. The only 
question that has been a bone of contention, that 
has been the cause of stirring up strife, that 
lias been made the pretext for assaults on differ- 
ent sections of this Union — that one single, im- 
portant question, is submitted to a fair vote of 
the people. What the result of that vote will be 
it is impossible for me to foretell. This much, 
however, I can with propriety say: If a majority 
of the people there are determined not to have 
African slaves, it would be folly, by any scheme, 
by any trick, to get up a constitution adverse to 
the will of the majority; and hence I am glad this 
slavery question is fan-Iy submitted. Although 
1 greatly prefer having no constitutional and no 
legal barriers, though I subscribe most heartily 
to the doctrine of climate, of production, and of 
vocation, and think it the only sound solution of 
this question within the limits of the Federal 
Union, still my opinion is not to be set up as dic- 
tatorial to influence others. It is but my indi- 
vidual property; I shall act upon it so far as I am 
able. As it is thus submitted, it is the only ques- 
tion of controversy. Who is it that complains of 
any provision in the Kansas constitution? and 
who IS it that could complain of a provision in 
that constitution, who did not have a fair oppor- 
tunity to make it otherwise, if he is in the ma- 
jority? and if he is in the minority, let him com- 
plain and gnash his teeth in vain. Minorities 
are expected to complain; but it is the duty of 
minorities to submit as gracefully as their feel- 
ings will well permit. If they were the majority, 
they had the opportunity to make it otherwise. 
If they did not choose to exercise their right, it 
is their fault and their misfortune. If the 
majority have exercised their legal rights in an 
honorable, upright, and fair manner, they are 
not to be forced to give way to a factious mi- 
nority. 

I have also shown there is no legal objection, 
and no prudential consideration, to prevent the 
admission of Kansas. How, then, are we to 
act on this subject? Are we to go back and 
travel over the detail of circumstances that oc- 
curred in Kansas, so far as jiresented in the 
President's message? It is unnecessary, except 
«o far as they bear on the fairness of this con- 
vention, the fair opportunity for the free expres- 
sion of the will of the people. Whether the 
President's reasoning be right or wrong, let it 
pass. It ought to commend him for his jiatriot- 
ism.for his disinterested view, and for the sound 
conclusion at which he arrives. With this com- 



mendation, and with this support, whether he is 
right or wrong in saying the law requires the 
slave branch of this controverted matter to be 
submitted to a vote of the people, 1 shall not 
utter one word of complaint. 

There is a still greater object in view than »o 
look back at the past, and find fault with this or 
that proceeding which occurred in Kansas. This 
is the President's view. Practical men must take 
hold of subjects and act in a practical manner, to 
effectuate the most good in a constitutional and 
legal way. From all the investigation I have given 
to this subject, I am satisfied that the good of 
Kansas, the good, the peace, the prosperity of the 
whole Union will be affected more or less by the 
decision that we make on this Kansas question. 
If Congress keeps it open, if excitement is still to 
spread through the land, if a system of warfare 
is to be gotten up plunging the land in gloom, 
and perhaps reaching to the extreme of shedding 
human blood, the consequences will be on those 
who reopen the slave question, the Kansas ques- 
tion, the squatter sovereignty question, or any 
other question connected with the well-being of 
Kansas. If there be any question that can be 
fairly decided in Kansas, it is llie slave question. 
I believe that it will be fairly decided there. I 
believe the constitution meets the approbation of 
'a majority of the people of Kansas. In regard to 
that, I have no question or doubt, and my belief, 
founded on the slight sources of information I 
possess, is at least to be treated as a set-off to the 
fear of fraud, and to the allegation of improper 
influences, on the part of the people of Kansas, 
as alleged by the Senator from Illinois. 

iVIr. President, I have thus given my views of 
this subject. I have elaborated no single point. 
It has been my purpose simply to show that there 
is no obstacle in the way, and that tiiere are 
considerations why, in conformity with the past 
action of the country, we should admit Kansas 
at once. I believe she has acted as fairly as any 
other Territory. I have stated the reason why 
I have given my view of the case. Whether the 
constitution will come up in the one shape or the 
other, is a subject about which I have no right to 
express an opinion. Whether it will come up at 
all, or not, I am not able to say, though 1 appre- 
hend it will. I have only felt bound to meet the 
objections urged by the Senator, because I thought 
they would have a prejudicial effect upon the 
country, and an exceedingly prejudicial effect in 
Kansas, where an election is to be held on the 
SIstof this month. It is true little that I can say 
or little that others can say, will reach Kansas 
before the election; but, at least, both sides ought 
to be partially heard — heard enough, at least, to 
compare them together and see which is in con- 
formity with the Federal Constitution, and which 
is in conformity with the law, which is in con- 
formity with the practice of the Government. 
AVhether I have succeeded in showing that the 
position I take is correct, is, of course, for others 
to determine. 

Mr. BIGLER obtained the floor. 

Mr. DOUGLAS. I trust I shall be permitted 
to say a few words in explanation. 

Mr. BIGLER. I shall most cheerfully yield 



15 



the floor to the Senator from Illinois, after a very 
few remarks. My object is to take the floor — 
not to speak to-day, but to move the postpone- 
ment of this subject until Monday, unless some 
other Senator desires to speak to-morrow. 

Mr. DOUGLAS. I will make the motion in 
the Senator's name, with that understanding. 

Mr. BIGLER. That is satisfactory. 

Mr. DOUGLAS. Mr. President, I have lis- 
tened to the Senator from Missouri [Mr. Green] 
with unfeigned pleasure. There has been a fair- 
ness in his tone and in his line of argument which 
shows that he has been arguing from his convic- 
tions, with the view of stating what he conceives 
to be the true, sound aspect of this question. It 
is gratifying to mc to hear the subject discussed 
in that spirit and tone before the Senate. I but 
do the Senator justice when I say that he has 
presented the qiiestion with marked ability and 
clearness; and I am inclined to think that the 
best view of the sulyect has been presented to- 
day which we shall have from the Senator's side. 

1 should not utter a word, but for the fact that 
the Senator has misapprehended my meaning 
and my position on one or two points, and I deem 
it due to myself to restate my views on those 
points, in order that he, the Senate, and the 
country, may see what the true position is. I 
acquit him of any intention to misstate; there was 
only a misconception. This may have been occa- 
sioned by my own fault, as 1 spoke rapidly, 
without preparation, and had no opportunity to 
revise the report of my speech. The Senator is 
under a misapprehension in supposing that I 
have assumed it to be a fatal objection to the 
admission of a State into this Union that there 
was no enabling act giving the consent of Con- 
gress in advance to the formation of a constitu- 
tion. I took no such position. 

The Senator is also mistaken in supposing that 
I took the ground that it was a fatal objection that 
the constitution was not submitted to the people 
before being sent to Congress for acceptance. I 
did not assume that position. My ground was 
this: the regular mode of proceeding is by an 
enabling act, and if the Territorial Legislature 
proceed to call a convention without first having 
the assent of Congress to do so, it is irregular, but 
not so irregular that it necessarily follows their 
constitution cannot be accepted. I argued and 
cited the opinion of the Attorney General in the 
Arkansas case, to show that, although a conven- 
tion called by a Territorial Legislature without 
the previous assent of Congress, was irregular, 
yet it was not an unlawful assemblage, but was 
a body of men having a right to petition under 
the Constitution of the United States, and that 
liaving been assembled in convention, more force 
ought to be given to the mode of assemblage, but 
that it was not a constitutional body, authorized 
to institute government. In other words, I con- 
tended that a convention, constituted in obedi- 
ence to an enabling act of Congress previously 
giving assent, is a constitutional body of men, 
with powerand authority to institute government; 
but that a convention assembled under an act of 
tlie Territorial Legislature, without the assent of 
Congress previously given, has no authority to 



institute government. It has power to petition; 
it may put its petition in the form of a consti- 
tution; and when it comes here we are at liberty 
to accept or reject that petition. 

This was my position in regard to the eflfect of 
an enabling act. I then went on to show that, 
there having been no enabling act passed for Kan- 
sas, the Lccompton convention was irregular. I 
argued that it was not an unlawful assemblage, 
but might present a petition to us in the shape of 
a constitution, which we should be at liberty to 
accept or reject, as we pleased. It was a con- 
vention authorized to petition, but not to estab- 
lish or institute government. 

I was aware that in the history of this Govern- 
ment some new States had been admitted without 
the passage of an enabling act by Congress in 
the first instance. I must be permitted, however, 
to spoil the effect of one or two of the Sena- 
tor's cases — those upon which he dwelt with th« 
greatest pleasure and most satisfaction to himself. 
He tells us there was no enabling act for Mich- 
igan. If the Senator will look back into the his- 
tory of Michigan, he will find that the authority 
existed under the old ordinance of 1787. That 
ordinance, which was the organic act of Mich- 
igan, provided that the Northwestern Territory 
should be divided into not less than three nor 
more than five States, and each of those States 
was, by the ordinance, authorized to be formed 
and admitted into the Union when it should have 
sixty thousand inhabitants. Thus an enabling 
act was incorporated into the ordinance of 1787 
for the five northwestern States. This is the 
reason why it was not necessary that there should 
be an enabling act for Michigan, nor for Ohio, 
nor for Indiana, nor for Illinois, nor for Wiscon- 
sin. 

Next, with regard to Tennessee. The Senator 
quotes the names of Washington and Jackson — 
names that raise a thrill of patriotic feeling in the 
bosom of every American when they are men- 
tioned, and to whose example we should, of 
course, yield the tribute of our aj 'probation. How 
was it with Tennessee ? The Senator says it was 
the first new State admitted without an enabling 
act. Tennessee, when cut off from North Caro- 
lina and formed into a Territory known as the 
Southwestern Territory, was organized into a 
territorial government by an act of Congress, 
which extended to it all the provisions of the or- 
dinance of 1787, except the slavery clause. Thus, 
the territorial organic act of Tennessee contained 
within itself an enabling act, declaring that th« 
people of Tennessee should have authority to 
form a constitution and State government when- 
ever the Territory should have sixty thousand 
inhabitants. Being thus authorized , the Legisla- 
ture of Tennessee took steps to find out when 
they had the sixty thousand inhabitants. When 
they ascertained that fact by a census, they called 
a convention to form a constitution. When they 
applied to Congress for admission, President 
Washington, in that beautiful letter which the 
Senator read, referred to the fact that in the act 
organizing the Territory of Tennessee there wa» 
an enabling clause, guarantying to that Terri- 
tory the right to come into the Union whenever 



16 



it should have sixty thousand inhabitants. The 
Governor of the Territory having furnished the 
evidence showing that there were then sixty 
thousand inhabitants in Tennessee, according to 
the census, that people had a right to come into 
the Union on an equal footing with the original 
States. These facts dispose of the alleged ex- 
ample of Washington and Jackson, for they show 
that in the very case in which both acted, the as- 
sent of Congress had been previously given. 

I am aware that in the Florida case and in other 
cases there was not an enabling act in the first 
instance. The rule upon which we acted was, 
that, although this was an irregularity, it might be 
waived or insisted upon according as we thought 
public policy and public duty required. I took 
that ground in my speech last week. I said 
further that,wliere an enabling act had been passed 
and a convention had been organized in the man- 
ner therein provided for, it was a constitutional 
convention empowered to institute government; 
and hence stood on a different footing. That dis- 
tinction has been clearly taken, elaborated, and 
established by the Senator from Missouri in his 
speech. If he is right and I am right in thi.s argu- 
ment, it follows that the convention which met 
at Lecompton and formed a constitution was not 
a body properly constituted and empowered to 
institute a government, for the reason that it had 
not the previous authority of Congress, but was 
merely an assemblage of citizens regularly col- 
lected for the purpose of petitioning for a change 
of government from a territorial to a State gov- 
ernment, and when that petition comes here we 
shall be at liberty to accept it or to reject it — to 
dispose of it as we may see fit. 

Again, sir; the action of the convention shows, 
in my judgment, clearly, that they took the same 
view of the subject; for I must still insist that the 
convention did not assume that they had a right 
to institute government by virtue of the power 
which they possessed, but only to frame a con- 
stitution to be submitted to the people, and go 
into operation when ratified. TheSenatorthouglit 
I was mistaken in this. Let us refer to the record 
and see which of us is mistaken. The sixteenth 
section of the schedule provides: 

" Tliis constitution sliall take effect, and be in force, from 
and al"t<!r its ratification by the people, as herein before pro- 
vided." 

If not ratified it is to be void; if ratified it is to 
take effect from that time, and by virtue of that 
ratification. This clearly shows that the conven- 
tion did not claim to be a body empowered to in- 
stitute government, but simply a body authorized 
to frame a constitution in the shape of a petition, 
and to pray for its acceptance by Congress. That 
was the distinction. 

Again, in the seventh section of the schedule 
we find: 

" Before tliis constitution shall be sent to Congress forad- 
inis.-ion into the Union, as a State, it shall be submitted to 
all the white male inhabitants of this Territory, for approval 
or disapproval as follows : 

It then goes on to give the form of the vote, 
"constitution with slavery," or "constitution 
■with no slavery;" but beforft-it can be sent to 
Congress the schedule says it shall be submitted 



for approval or disapproval. Can it be said, in 
the face of this language, that the convention de- 
clared the constitution in force without submit- 
ting it to the people .' Can it be said that the 
constitution can ever take effect, unless ratified by 
a vote of the people.' If I can understand the 
plain meaning of language which appears to b« 
unequivocal, it is not susceptible of doubt that 
the constitution is referred to the people for ac- 
ceptance or rejection, and that whatever validity 
or vitality it is to have, will be received from the 
people's ratification. If I am right in this posi- 
tion it brings me back to the old point, that the 
submission is such as not to give an opportunity 
for a fair vote on the slavery or any other ques- 
tion. 

I come next to the position which I assumed 
with reference to the submission of a constitution 
for ratification. I did not contend that a consti- 
tution might not, under any circumstances, be put 
in operation unless submitted to the people for 
ratification. I said before, and I say now, that 
the constitution must be the act and deed of tha 
people of Kansas; it must embody the will of 
the people of Kansas; no constitution should be 
received by Congress, and none can fairly be con- 
sidered republican which does not embody the 
will of the people who are to be govei'ned by it, 
and is not forined by their act. Having assumed , 
as an essential fundamental principle, that the 
constitution must embody the will of the people, 
the next question is, what is the best and most 
appropriate mode of ascertaining that will .' Upon 
that point I concur with the President of the 
United States in his message, that the best mode 
is to refer it to the people for their acceptance or 
rejection by a fair vote. The principle being that 
it shall embody the will of the people, its sub- 
mission to a popular vote is only a means of as- 
certaining a fact, which fact, namely,, that it 
embodies the will of the people, gives it vitality, 
and makes it an appropriate constitution. 1 
regard the argument of the President of the United 
States in favor of that mode of ascertaining the 
people's will as conclusive. The President's argu- 
ment is, that delegates represent districts, and a 
majority of the delegates may represent a mi- 
nority of the people, in consequence of some 
being elected by large majorities and others by 
small majorities; hence the President says a del- 
egate election is not a fair test, but' you must 
refer it to a vole of the whole peo]ile in order to 
ascertain the vital, the fundamental, the cardinal 
point whether or not the constitution is the em- 
bodiment of the will of the people. I advocate 
submission, as a means of ascertaining an end, 
not as a principle. I do not say that there could 
be no possible case in which I would not accept 
a constitution without its having been thus sub- 
mitted. Suppose, forinstance, a constitution had 
been formed by delegates, and there was not a 
murmur against it, not a protest, not the slightest 
reason to believe that anybody dissented from it, 
and the only question in dispute was the suffi- 
ciency of the population, I am not certain but 
that I should waive the irregularity, and take it 
for granted that such a constitution did embody 
the will of the people. If I should accept it on 



17 



such terms, it would be because there was satis- 
factory evidence that it was tlie will of the people. 
That will embodied in the constitution is the 
cardinal principle which is, or should be, a sine 
<]ua non in the establishment of governments for 
the admission of a new State. 

This is the point of difference between the 
Senator from Missouri and myself. As he evi- 
dently misconceived my meaning on the matters 
to which I have referred, it has seemed to me to 
be due to him to restate my views, especially as 
he has treated the subject with a candor and 
courtesy that deserve to be followed and imitated. 
Certainly they will leave their impression on me 
in conducting discussions with him. I shall en- 
deavor to profit by the example lie has set this 
•day in the mode of debate. 

Mr. GREEN. I am somewhat surprised at 
the position taken by the honorable Senator from 
Illinois. He undertakes to prove that the State 
of Michigan was authorized to form a constitu- 
tion by an enabling act, and this by a process of 
reasoning which I had not expected from him. 
He undertakes to prove it by the ordinance of 
1787, which contained a provision that the Ter- 
ritory should be divided into not less than three 
and not more than five States. So far as this 
division is concerned, he is well aware of the fact 
that it has been violated. The Territory is made 
into more than five States; but does the ordinance 
give authority to the people of a Territory to 
form a constitution ? Does it convey from Con- 
gress to the people authority to create a govern- 
ment? He says yes. Congress did not so con- 
sider when they passed an enabling act for Ohio. 
Congress did not so consider when they passed 
an enabling act for Indiana. Congress did not 
so consider when tiiey passed an enabling act for 
Illinois, the gentleman's own State. Four out 
of the five States in the Northwest Territory 
formed their constitutions only after enabling acts 
had been passed by Congress. 

But I propose to show that, if that process of 
reasoning be submitted to prove the existence of 
an enabling power to create a State government 
for Michigan, it exists in Kansas in all the per- 
fection it ever possessed in Michigan. There was, 
eays the Senator, an enabling act in the case of 
Michigan, because the ordinance of 1787 said the 
people, when they numbered sixty thousand, 
should be entitled to form a State government. 
Now the Louisiana treaty, by which the United 
States acquired Kansas, contains similar pro- 
visions, and the law of Congress, passed to give 
effect to that treaty when the United States took 
possession of the Territory, contains an express 
stipulation to that effect. The opinion of the 
Attorney General in relation to Arkansas, which 
the Senator read, is as follows: 

" The treaty by which Louisiana was ceded to the United 
States, thougli undoubtedly, for many important purposes, 
a part of the supreme law, must, theietbre, be laid out of 
the present question. It is true that the third article 'im- 
poses on the IJniti-d Slates, as a nation, the duty of incor 
porating tlie inhabitants of the ceded territory into the 
Union of the United States,' and of adniittini; them as soon 
as possible, aecordinp; to the principles of the Federal Uon- 
Htitution, to the enjoyment of all the rights, advantages, and 
immunities of citizens of the United States ; and, in the 
mean time, they are to be maintained and protected in the 



free enjoyment of their liberty, property, and the. religion 
which they profess. And it must also be admitted that Con- 
gress, by the seventh section of the act of the 2d March, 
180,), • providing for the govornincnt of the Territory of Or- 
leans,' have construed this article as pledging the faith of 
the United States to admit the inhabitants of I^ouisiana 
into the Union of the American States as an independent 
State, or States, and on the footing of the original States, 
whenever the proper number of free inhabitants shall be 
found therein." 

Now, we have a treaty stipulation, which ia 
the supreme law of the land, providing, prospect- 
ively, for the people of Kansas to form their con- 
stitution. We have a legislative construction by 
the Congress of the United States, guarantying 
that right to them. If the mere ordinance of 1787 
conferred on the people of Michigan the power, 
(which is disproved by the acts of Congress in 
four cases out of the five in the Northwest Terri- 
tory to which the ordinance of 1787 applied,) the 
same argument proves that an enabling act does 
exist for Kansas. 

That is not ail. The Senator said he referred 
to it for the purpose of taking away one of the 
instances to which I referred with so much gusto. 
I did refer to it with pleasure; but he fails to take 
it away; or, if he does, he supplies an enabling 
act for Kansas; and he may take his choice of 
the positions. If he does not take it away, the 
argument I before made stands unanswered. If 
he does lake it away, he proves the existence of 
an enabling act for Kansas, which is the very* 
question we are talking about. He may take 
either horn of the dilemma. 

He says I misconstrued him; that he did not 
mean to say this, that, or the other, was conclu- 
sive why we should not admit Kansas. I did not, 
I hope, represent him as saying that either one 
of tliose objections was conclusive why we should 
not; but he urged them as objections to the ad- 
rnission of Kansas, and I answered his objections. 
He did not say in his chain of argument that the 
want of an enabling act was conclusive why Kan- 
sas must be rejected, but it was one of the links 
of the chain, and I thought it best to break each 
link, one at a time. I broke the link of an en- 
abling act, or tried to do so. I broke the link of 
previous submission of the constitution to the 
people, or tried to do it, and, as a conclusive 
example, I instanced his own State, the constitu- 
tion of which was not submitted to the people. I 
have shown by examples in the Government that 
a large majority of the State constitutions were 
never submitted to the people before they were 
admitted as States, and, hence, I am urging no 
new doctrine, I am propagating no new theories. 
We stand upon the practices of our republican 
fathers, and but follow in the footsteps of George 
Washington and Andrew Jackson. 

But the Senator says, when Territories have 
no enabling act, and the constitution has not been 
submitted to the people. Congress may, or may 
not, admit them into the Union as States. I un- 
derstand him as taking that position. Very well. 
There is no physical compulsion that can be 
brought to bear in any case to compel Congress 
to admit any Slate. There is a moral obligation, 
and that appeals to us. I hold that that moral 
obligation exists not only as strongly, but, per- 
haps, forty thousand times stronger, in regard 



18 



to Kansas, than any Slate which has ever pre- 
eented itself at our doors for admission. No 
nrmies could inarch to this Capitol, and compel 
Congress to admit Texas, California, Illinois, 
Missouri, or any oilier State. There is no phys- 
ical compulsion on us to admit Kansas into this 
Union. There is no legal objection, there is no 
prudential consideration, why it should not be 
done. Is there not a moral obligation to do it? 
That is the question. That moral obligation 
exists as strongly in regard to Kansas, as it ever 
did in regard to Illinois: and if the constitution of 
Kansas has not been submitted, neither was the 
constitution of Illinois, neither was the constitu- 
tion of Missouri; and I would be very unfair to 
Kansas if I sought to apply a rule and a prin- 
ciple to it that were not applied to my own State 
when it was admitted. 

Missouri came and asked admission into this 
Union, having formed a State government in 
compliance with what gentlemen arc pleased to 
call, in this latter day, an enabling act, which 
imparts, as I bcftu-e remarked, no new power to 
the people. Ail it does is to give, in advance, 
the assent of Congress, which maybe given sub- 
sequent to the formation of a constitution for 
Bdmission. The one is as re::ular as the other; 
the one is as legal as the other, and the latter is 
the safer of the two; for, ns the Senalf>r admits, 
and as 1 contended, if Congress give the assent 
• in advance, that State stands as an independent 
State, in spite of the Federal Union, and nothing 
but physical power can ever bring her into the 
Union, except her voluntary action in conjunction 
with your voluntary action. 

Butagain: theSetiatorthinks I misapprehended 
liim in regard to the submission of the consti- 
tution. If I make any blunders, I will take great 
pleasure in correcting them. I undertook to show 
iha't the mere teclniical phraseology of this in- 
Btrument was not the subject to be determined. 
It was its legal construction, and that we, as 
judges or statesmen, must pass sentence on its 
purport and meaning. What is its purport and 
meaning? That but one single subject is sub- 
mitted for the consideration of the voters; that 
the whole subject was before them when tliey 
voted for the members of the convention; that if 
they stayed away, they stayed away in their own 
wrong; that they did their duty when they voted 
for members of the convention; that that conven- 
tion was as legal and regular as any that ever sat 
in the whole limits of this Confederacy; and that 
this one question subtriittcd to them is presented 
to them from a mere consideration of propriety 
and policy, and not from any legal compulsion 
whatsoever. This was my position. 

Now, is the fair construction of this clau.se of 
the schedule in accordance with the position I 
take; or is it in accordance with the position as- 
sumed by the Senator from Illinois ? The seventh 
section of the schedule says: 

"That tliis constitution .sliiill be submitted to tlic Con- 
gress of tlie Uiiitod States at its next ensuing session, anil 
us soon as official inibrniation has been received that it is 
aj)proved by the same, by the admission" — 

For that is the only approving they have to do — 

•' of the State of Kansas as one of the sovereign States of 



the United States, the president of this convention shall 
issue liis proclamation to convene the State Legislature at 
the seat of fjovernment within thirty-one days after pubh- 
cation. Should any vacancy occur by death, resiiiiation, 
or ollierwi?e, in the Legislature or other olBce, he shall 
nrdcn' an election to till sucli vacancy: Provided, hoivever, 
In case of refusal, absence, or disability of th.e president of 
this convt'iilioii to discharfje the duties herein imposed on 
him, the pri'siilcnt pro icmjiore of this convention shall per- 
form said duties; and in case of r.bsencc, refusal, or dis- 
ability of the president jrro Icmjiorc, a committee consisting 
of seven, or a majority of them, tliall discharge the dutu'it 
required of the president of this convention.-' 

Then comes the section marked " eleven," 
which has reference to the mode of submitting to 
the people of Kansas whether they will have sla- 
very in the constitution, or whether slavery shall 
be stricken out of the constitution. It is in this 
language: 

" Before this constitution shall be sent to Congress." 

It never takes effect until the admission of the 
State by Congress. Before it shall be sent to 
Congress certain things shall be done. The ques- 
tion on v/hich 1 intended to correct the Senator 
was, that the constitution, as the constitution of 
a State government, never is to take effect unless 
Kansas be admitted by Congress into the Union. 

" Before this constitution shall be sent to Congress for 
admission into the Union as a State, it shall be submU- 
ted"— 

What is to be passed upon ? Let us see. 
— " to all the white male inhabitants of this Territory ft>r 
approval or disapproval, as follows:" 

What is to be approved? It is submitted to 
them to be approved or not approved, on what 
point? Why, "as follows." What docs fol- 
low: 

— " The president of this convention shall, by proclama- 
tion, declare that on the 21st day of Deeembor, 1857, at thu 
diflorcnt election precincts now established by law, or 
which may be established, as herein provided, in the Ter- 
ritory of Kansas, an election shall be held, over which shall 
preside three judges, or a majority of them, to be appointed 
as follows: The president of this convention shall appoint 
three coinmissioncrsin each county in the Territory, whose 
duty it shall be to appoint three judges of eleclitm in th« 
several precincts of their respective counties, and to estab- 
lish jireiincts for voiins;, nitd to cfcse ]iolls to be ojiencd at 
suc/i places as ilicy may deem jtroper in their respectire coun- 
ties, at which election the constituticr. framed by this con- 
vention shall be submitted." 

How? 
"To all the white ninle inhabitants of the Territory of 

Kansas in the said Territory upon that day, and over the 

age of twenty-one years, for ratification or rejection, in llie 

following manner and tbrin." 

I The term "ratification" and the term " rejec- 
j lion" are both used, but to what had they refer- 
jence? "For ratification or rejection in the fol- 
j lowing manner and form." It has reference to 

the only one thing submitted to them. What is 

that ? 
"The voting shall be by ballot. The judges of said ele*- 
I tion shall cause to be kept two poll books by two clerks by 
] them appointed, 'i'lie ballots cast at said election shall be 

indorsed, ' constiUition with slavery." 

I Not "for constitution" and "for slavery." 
There is but one vote cast — not for two things. It 
is for one thing; the vote is cast " constitution with 
slavery, "or on the other side," constitution with 
no-slavery." So that there is but one single point 
submitted to the people on which they can vote, 
or were intended to vote, by the mode in which 



19 



this question was suliniitted. I remarked on the 
word " ratified," ll)at it did not mean tlie whole 
constilutioii should be ratified and fixed and de- 
, tcrniincd, but that the jjeople were to fix, settle, 
tind determine tliat which had not been fixed, set- 
tled, and determined, to wit: whether there should 
'oeaclausc> sanctioninj slavery in the constitution 
or not. The last section is as follows: 

'•Sec. 1G. This coiislituiiDii shall take efl'eol and be in 
forci! (ri)iii and :i!t;'i' its ratificuLioii by ilie puople, as here- 
inbefore proviilcd." 

Its ratification means seitlinj^and determining, 
as before remarked; but it is to take effect " as 
hereinbefore provided." It isprovided that itshall 
not take effect until Kansas has been admitted by 
Congress as one of the sovereign States of the 
Union. The. people of Kansas have never pro- 
posed, and do not propose, in this constitution to 
erect a government in opposition to Federal au- 
thority. They have been pursuing Federal au- 
thority from the inception of their movements 
down to the present period of time. It met the 
sanction of the local government; it met the sanc- 
tion of the executive power, and they have thus 
been acting in conformity with the Federal Gov- 
ernment. When thus finished, it says itshall not 
go into operation until admitted as a sovereign 
State. Do they propose to elect Governors and 
judges, who are to be sworn into office and ad- 
minister the government in opposition to the Fed- 
eral Government? Do they a.ssume the sov- 
ereignty of the Territory embraced within their 
boundaries? Nothing like that, whatever. We 
must not stop on a simple phrase or a single sen- 
tence, but take the whole scojie of it together, 
and give it a fair construction; not the construc- 
tion of a criiic who is hunting for something to 
which to find objection, but a fair, reasonable con- 
struction; and that construction is in strict con- 
formity with what 1 have before stated it to be. 

When the Senator says he wants a constitu- 
tion that will reflect the will of the people, I re- 
spond to him as heartily, and say I want no other 
kind of coiisiituiion. I must say, however, that 
when his bill says to the people of the Territory 
they may fix this constitution in their own v/ay, 
and thev have seen proper to take a v.^ay he did 
not approve, he has no power to supervise them; 
unless, indeed, he is prepared to trample under 
foot the very principles asserted in that bill. 

I have also asserted, and again repeat, that the 
people can act as effectually, and completely, 
through deh'gates representing them in conven- 
tion, as in any other way. Who in this Govern- 
ment would rise and say that the presumption is, 
not that ihc laws passed by Congress are ap- 
proved by the States and the people ? Who would 
rise and say the presumption is that the laws 
of the State Legislatures afford no intendment 
that they emanate from the people? It is sub- 
versive of the whole representative principle; it 
strikes at the foundation of republican govern- 
ment in this great Confederacy. Even if another 
way be preferred and be believed to be most in 
accordance with v/hat Democracy requires, still 
it is for the Territory and not for the Federal 
Government to decide. 

Mr. DOUGLAS. The Senator from Missouri 



will not find an enabling act in the treaty with 
France. True, the treaty provides that the in- 
habitants of the territory ceded by France to 
the United States shall be admitted into the Union 
as soon as possible, according to the jirinciplcs of 
the Federal Constitution— not when there shall 
be sixty thousand inhabitants, not when there 
shall be any particular number of inhabitants, 
but as soo)i as may be consistent with the prin- 
ciples of the Federal Constitution. Nor docs it 
provide with what boundaries they should be 
admitted. We admitted the inhabitants of Lou- 
isiana, then those of Missouri, then those of 
Arkansas, then those of Iowa, uiuil we had thus 
admitted all the inhabitants there were in the 
country acquired from France. There was 
waste country still left, but there was no time 
fixed by tlie treaty, no data laid down by which 
it could be determined when or liow they should 
be admitted into the Union. Thus it has been 
reserved to Congress to determine when they 
may have the requisite population. It is for 
Congress to determine what shall be the bound- 
aries. It is not for the peo)ile of a Territory to 
say authoritatively what boundaries they shall 
take. On the contrary, Congress has always re- 
served and insisted on the right of establishing 
the boundaries, and such is undoubtedly the 
case in the Kansas-Neljraska act. 

Congress never intended that Kansas should 
necessarily have a right to come into the Union 
with her present boundaries; for the organic act 
expressly reserves to Congress the right to alter 
and divide the Territory, and attach parts of it 
to other Territories. In the enabling act which 
the Senate passed last year, we cut off about one 
third of the present Territory of Kansas, and pro- 
vided for the admission of the remainder as a 
State. We never contemplated bringing her into 
the Union with the boundariesfixedby the organic 
act, and by the Lecompton constitution. Will it 
be contended that the Kansas-Nebraska bill con- 
templated bringing the whole of Nebraska into 
the Union as one State? Does that act authorize 
the people of Nebraska to form a constitution 
''when they please, and to come into the Union 
with a territory eight times q^ large asNewYork? 
Certainly it was never the intention of that organic 
act to confer on the peojile of a Territory the au- 
thority of saying that they will come in when 
they please, with as few or as many inhabitants 
as they please, with such boundaries as they 
choose, absorbing the whole waste country of the 
United States, and making an empire instead of 
a State. 

The meaning of the Kansas-Nebraska act was, 
that when the time should come for them to form 
a State government, they should be admitted into 
the Union with or without slavery, as their con- 
stitution might prescribe, and that they should 
be left perfectly free to decide on their local and 
domestic institutions for themselves; but there 
was no pledge, no authority given to them to form 
a State with the extended limits included within 
the Territory, nor to form a State at all until 
Congress should determine that they were au- 
thorized to form a State. It was for the very- 
reason that the Kansas-Nebraska act did not con- 



20 



tain an enabling provision that President Pierce, 
in his message at the first session of the last Con- 
gress, recommended to Congress to pass an en- 
abling act authorizing the people of Kansas to 
form a constitution when they should have the 
requisite population. The President said: 

" This, it seems to nie, can be best accomplished by pro- 
viding that, when the inhabitants of Kansas may desire it, 
and shall be of sufficient number to constitute a State, a 
convention ofdclegates, duly elected by the qualified voters, 
ehall assemble to frame a constitution, and thus prepare, 
through regular and lawful means, for iis admission into 
the Union as a State, f respectfully recommend the en- 
actment of a law to that effect." 

This message proves that, in the estimation of 
President Pierce and his administration, in the 
beginning of 1856, the time had not then arrived 
for the admission of Kansas, because she had not 
the requisite population, and also that an enabling 
act was necessary to give her authority to pro- 
ceed to form a constitution and Slate government. 
Now, sir, let us see how the Committee on Ter- 
ritories of the Senate that year understood it. 
Here is the response of the committee to the 
President's message: 

" In compliance with the first recommendation, your 
committee ask leave to report a bill authorizing the Legis- 
lature of the Territory to provide by law for the election of! 
delegates by the people, and the assembling of a convention 
to form a constitution and State government preparatory to 
their admission into the Union on an equal footing with i 
the original States, so soon as it shall appear, by a census I 
to be taken under the direction of the Governor, by the j 
authority of the Legislature, that the Territory contains ! 
ninety-three thousand four hundred and twenty iiihabitants ' 
— that being the number required by the present ratio of ! 
representation for a member of Congress." I 

Thus, the Committee on Territories in 1856} 
responded to the recommendation of President i 
Pierce, and the Senate responded to the report 
by passing through the body a bill authorizing 
the people of Kansas to form a constitution and 
State government. This shows that I am not the 
onlyman whoconstrues the Nebraska bill to mean 
that an enabling act is necessary before the right 
of admission into the Union becomes complete. 
I show you that the President of the United 
States, who approved the bill, the President who 
made it an administration measure, so understood 
it at the time, and fh declared in his message. 1 
show you that the Committee on Territories 
which drafted the Nebraska bill, so understood it 
at that time. I show you that the same Senate 
which passed the Nebraska bill by the votes of 
the identical Senators who passed that bill, thus 
construed it at the time. 

It is too late now to say that neither the Pres- 
ident who signed the Nebraska bill, nor the com- 
mittee who reported it, nor the Di'mocratic Senate 
•who passed it, understood it. The evidence can 
be accumulated mountain high, that it was the 
true intent and meaning of the act, as we ex- 
pounded it at the time, that the people should be 
left free to form their institutions in their own 
way up to the last moment of admission — not 
slavery only, but all local and domestic institu- 
tions in contradistinction to Federal or national 
institutioris. They have as inuch right to vote on 
the banking system, the judiciary system, the 
taxation system, the school system, as they have 
to vote on the slavery question. 



The Senator tells us that the Nebraska bill 
meant only the slavery question, because we here 
felt no interest in anything else. It may be that 
the people of Missouri felt no interest in anything 
else. It may be that the people of Illinois felt no 
special interest about the banking system or school 
system of Kansas. It may be that the people of 
Virginia did not care what sort of a taxing system 
Kansas might have; but does it follow that the 
people of Kansas did not care ? The people of 
Kansas had an interest in the taxation system, 
in the school system, in the banking system, in 
the judiciary system, in the elective franchise. 
These local and domestic institutions were every- 
thing to them. We did not care about them. 
Why? Because they were none of our business. 

The Senator says that I ought not to refer to 
these questions, because I have no right to a voice 
in them. True, I have no right to a voice in their 
local institutions, but the people of Kansas have; 
and it is my duty to see that they have a free and 
unirammeled expression of that voice upon all 
their institutions. I deny that you have a repub- 
lican constitution unless that is done. A consti- 
tution forced on a people against their will is not 
a republican constitution within the spirit of our 
institutions. It is no argument to say that this con- 
stitution is an excellent one. You have no right 
tocramagood thing down the throats of the people 
of Kansas against theirwill. It strikes at the fun- 
damental principles of liberty. This question 
between us is radical. It is whether that people 
shall be permitted to form their own constitution, 
and whether the constitution under which they 
are to live shall embody their will or not. It is 
not a matter of form whether the constitution 
shall be submitted to them. That is but one mode 
of obtaining the evidence of the fact of their will. 
The President says it is the best mode, and I 
agree with him, the principle being that theirwill 
is the great essential sine qua noil before you can 
bring them into the Union as a State. 

Then, Mr. President, the simple question comes 
back, shall that people have the authority to form 
and regulate their institutions to suit themselves? 
The Senator says wc may admit them if we see 
pro[)er, and ought to do so, in order to terminate 
the controversy. Sir, I will do anything that is 
right, anything that is just, in order to terminate 
this controversy. No man living is so anxious 
for its termination as I atn. I will sacrifice every- 
thing but principle and honor, and my country, 
in order to close this controversy. But how are 
you to close it? You must close it on principles 
of eternal justice and truth, or it will not stay 
closed. You must terminate it on the jninciple 
of self-government, or the constitution under 
which the people are to live is not republican. No 
patching up, no system of trickery by which the 
majority are cheated by tiie minority, will settle 
this question. Instead of producing peace, that 
will only be the beginning of undue controversy. 
When the broad fact stands admitted before the 
world that this constitution is the act of a mi- 
nority, and not of the majority, the injustice 
becomes the more manifest and the more mon- 
strous. The only reason for not submitting the 
constitution fairly is, that it would be voted down 



21 



if it were submitted. This is an admission that | 
it is the act of a miiiority, not of a majority. Do ; 
you expect that you will restore peace and quiet ^ 
to the country by forcing upon a people a consti- ; 
tution which does not embody their will.' I tell j 
you that you will have to avail yourselves of the 
recommendations of the message to increase the : 
Army, and to use the military power of this | 
country if the majority is to be subjected to the 
oppression of a minority. I trust there will be j 
no outbreak, no violence. I will use every influ- 1 
ence, by counsel and exertion, to insure submis- ; 
sion; but I fear the result if you shall use po^yer : 
to coerce a majority of four fifths into subjection 
to a minority of one fifth. [ 

But, sir, we are told that they ought to submit, 
because they can easily get rid of this constitu- 
tion. The President says'they may change itim-; 
mediately after their admission. Ah! how is that.?! 
The constitution formed at Locompton, provides 
that it may be changed after the year 1864, by a 
convention called by two thirds of the Legislature. 
I hold it to beaprincipleof law, that when a con- 
stitution provides for its own change at a particu- 
lar time and in a particular manner, that excludes 
all other times and all other modes. I undenake 
to say that any court in Christendom would thus 
construe this constitution. When it says that it 
may be amended at one lime, it excludes all other 
times. When it says it may be amended in one 
mode, it excludes all other modes. Will you tell 
me that the Constitution of the United States can 
be changed by a town meeting, or a mass meeting, 
or in any other mode than that pointed out in the 
'instrument itself.' No, sir! There is no constitu- 
tional modes by which this constitution of Kan- 
sas, if .once in force, can be changed before 1864. 
There isanothermode— a revolutionary mode. It 
is by the Legislature first coming together, taking 
an oath to support the constitution, and then pro- 
ceed to call a convention to change it, in violation 
of the constitution and of the oath. Suppose they 
should do this, and the convention thus called 
should make a constitution and establish a new 
government, and the old government should re- 
fuse to surrender the possession, who would be 
Governor— the one elected under the old consti- 
tution or the new.' You would have two govern- 
ments in operation at the same time, one utider 
the old and the other under the new constitution, 
and you would call on the Army to decide be- 
tweeri them. 

The scheme is a scheme of civil war. It leads 
directly to war. If I ever voted for it, I should 
expect to vote also for an increase of the Army, 
and for supplies to the Army, to enforce it at the 
point of the bayonet. It means violence, or it 
means the subjection of the majority to the mi- 
nority. I beseech Senators to pause before they 
commit themselves to so fatal a step. I beseech 
all to pause and see whether this is right or wrong, 
for on this matter we are free from party ties. 
The Senator from Missouri and myself agree that 
the President has not made it an Administration 
measure. We agree that he has not recommended 
it in his message. We agree, therefore, that every 
man on this floor is at liberty to go for or against 
it without changing his party ties or affecting his 



party relations. Why, then, can we not stop and 
pause before we rush on to a step that not only 
rends asunJer the Democratic party, but threatens 
the peace and perpetuity of the Union itself. 

It will not do to tell me that the President is in 
favor of it. Sir, I believe the President to be a 
frank, a bold, an honest man. I will not believe 
that he will make any measure a party one which 
he does not recommend in his message. I will 
not believe that he would ask his party to go for 
a measure to which he would not commit himself 
on paper. I will not believe that he wishes us to 
run our necks into the halter of disunion and civil 
war before he takes the lead and points the way. 
The absence of a recommendation in the message 
shows that no man can, consistently with the 
President's dignity of character, assert that he is 
in favor of this measure. Then I say, let us re- 
store peace to the country by ignoring the irreg- 
ular convention at Lecompton,by ignoring the 
irregular convention at Topeka, by passing an 
enabling act in proper form, authorizing the 
people to form a constitution and State govern- 
ment for themselves. Such an act will restore 
peace to the country in ninety days. In fact, 
the day you pass it everything will be quiet in 
Kansas. 

The people of Kansas will then see that Con- 
gress is going to carry out in good faith the prin- 
ciple of self-government. They will see that Con- 
gress is going to allow them to have slavery, if 
they want it, and to prohibit it if they do not 
want it. They will see that Congress is going to 
allow them to make their own constitution and 
laws in their own way. The moment they dis- 
cover that impartiality is to prevail, and justice 
is lobe carried out, they will be content; all will 
be quiet; there will be peace at the North, peace 
at the South, peace in the Democratic party, 
peace throughout the whole country. I trust that 
I we shall discuss this question in calmness, in 
good humor, and in a kind and respectful spirit, 
I as we have discussed it to-daj'-. 
! Mr. GREEN. I do not propose to notice the 
j exhortation of the honorable Senator. It is only 
) his argument and the points of difference between 
! us that deserve in\'estigation, and to them I shall 
I direct my attention. He mistakes entirely when 
he assumes that I admitted that the slavery 
branch of this controversy must, of necessity, ' 
under the law, be submitted to the people. I said 
just the contrary. I said it was a question with 
the convention of the people of Kansas Terri- 
tory. They were under no responsibility or ob- 
ligation, legal or otherwise, to submit any branch 
of the result of their labors to a subsequent vote 
of the people at the polls; but I remarked that if 
they saw pr)per, if they deemed it a matter of 
propriety to submit that question, as it had been 
a matter of controversy, there was more pro- 
priety in submitting it as a separate question, for 
that was the only way to submit it in order to 
get a fair decision of that question and nothing 
else. That was my position. 

But the Senator says that four fifths of the peo- 
ple there are against the constitution. He assumes 
this; he has no evidence of it; and I doubt his 
right to make the charge in the Senate. He says 



22 



that the only reason why the convention did not ; 
submit the constitution to the people, \vms because 
they said it would be voted down. Some indi- 
vidual may have said so. I do not believe it my- 
self. ( believe that it moet.s the approbation of ; 
a large majority of the people of Kansas Terri- 
tory. All these charges are only so many pre- 
texts gotten up for ulterior purposes, to keep up 
that speculation and that fanaticism to which the 
Senator, with his influence, maUts himself an un- 
willing coadjutor; for I know he does not aim at | 
that. 1 

When he says that no people ought to have a 
constitution forced down their throats, and that 
when a majority are not in favor of it, that it is 
not republican, he utters a truism that nobody 
denies; and he must not expect to lead me from 
the real points between us, by any .^uch asser- 
tions. If tlic non-submission of the constitution 
to the people of Kansas is forcing down their 
throats a constitution which they do not want, 
and if it be anti-republican, then Illinois came 
into the Union anti-republican, with a constitu- 
tion forced dov.-n the throats of her people. 

I refer to that for the purpose of proving the 
fallacy of his argument. It does not follow 
because the people have not voted on a question 
forty times that they have not been heard. They 
voted on it when they elected members to repre- 
sent them in convention. How often would you 
have them repeat it.' If this constitution was 
submitted to them now, perhaps they would raise 
the same objection again, and we should he'ar 
the Senator say, "do not force this down the 
throats of the people of Kansas;" and so it would 
go on nd infiniliun, with no limit. The true 
policy of this Government has been, as I hold, to 
adhere to the legal presumptions. The legal 
presumptions are that the people speak and act 
on all such questions when they form their con- 
vention and shape the constitution ; and the peo- 
ple may instruct their convention as they deem 
best; and even if they violate their instructions, 
the Senator from Illinois cannot stcj) in between 
a representative aud his constituents. It is still 
a question between them. We cannot interpose. 
1 had thought that non-intervention was to be 
the principle of action on the part of Congress, 
and that the Senate v/ould not intervene. Will 
the Senator set himself up as a judge whether 
Mr. Calhoun, or any other member of the con- 
vention, did right or wrong.' To his own mas- 
ters he is responsible, and by their verdict he 
Btands or falls. His conslituem-.y constitute the 
master, and not tlie Senate. of the United States. 
Why shall we therefore review it.' Why shall 
we call it in question ? They have had every sub- 
mission of the question that a m.ajority of the 
States of the Union have had, and now to say, 
that, because they have not had mon.-, it is anti- 
republican, coercive, forcing it down their throats, 
itV.to say that a majority of the States have been 
thus tyrannically dealt with — one of whicli States 
the Senator represents, another 1 represent, and 
another, the honorable Senator from Vermont 
[Mr. Coli.amer] represents, and another of them 
ia the State of Florida. 
So I might name more than seventeen out of 



the thirty-one States which never had a vote on 
their constitutions before they were admitted into 
the Union. Are they republican ? Yes. Wcra 
they submitted to the jieople.' Yes; but tire 
people in those cases spoke through tlieir repre- 
sentatives. Had the people of Kansas the sama 
opportunity to speak through tlieir represent- 
atives.'' Yes. Was the convention in Kansas a» 
legal as it was in Illinois? Yes. Was it as reg- 
ular — was it as fair.' Was the qualification of 
voters as just and as reasonable.' Yes. Where- 
fore, then, will Congress apply a rule in the one 
case that was not applied in the other? "Where- 
fore will you assume that one is anti-republican 
and the other republican ? that the one is a coerced 
measure, forced down the throats of the people, 
and the other perfectly fair, and just, and pop- 
ular? No, Mr. President, it is a mere assumption. 
More than that, when the gentleman says that 
the people ought to rule, there is not a Senator 
in this Chamber who dissents; but it is of no usu 
to dv.'el! on points of perfect agreement. Let us 
come to the points of difference. Do the people 
act through the convention, or is it possible tnat 
the people can act in no way except by mass 
meeting? It may be that the people of Kansaa 
did not wish to undergo the expense, and excite- 
ment, and danger, and tumult, of an election. 
Ten thousand considerations may have entered 
into it, and we have every presumption that the 
people were as fairly heard and as fairly repre- 
sented as in any other convention that ever sal 
in this Federal Union. 

Such being, the case, I hold that I have mora . 
logal evidence that this is the jieople's work, thai 
this is the people's constitution, than ho has to 
assume tliat four fifths of the people would votB 
it down. His is a mere assertion; mine is a legal 
presumption. Mine is in accordance v.'ith the 
principles of law, with the usage of constitutional 
representative government; his is the opposite in 
every jnxrticular. .Tudgc ye, then, betv/cen us, 
whether I defend the people, constitutionally, 
justly, fairly, or whether I seek to trample down 
the voice of the people. The Governor of Kan- 
.sas Territory told them "you ought to vote; if 
you have got the numbers, control i " If they 
had the numbers, is it not rea.sonab. supposa 
they would have voted? Knowing iOy did not 
have the numbers, they wanted to keep up a 
pretext for a revolutionary and insurrectio_nary 
measure, and that insurrectionary, rebellious por- 
tion of Kansas is to be reckoned as four fifths of 
the people of that Territory. 

More than that, sir, the people of Kansas iiav* 
this question submitted to them as a matter of 
])roprietj% not a matter of necessity, not a matter 
of compulsion. Kansas can come into the Union 
as a majority of the States have come in. Kansas 
has a republican form of government. As to 
tlie questions of boundary and of numbers, why 
brinuihiimup at this late period of ilie discussion ? 
On Wednesday last, when I thought the ingenioun 
mind of liie Senator had scanned ihe whole ques- 
tion tVoni the beginning to the end, and had 
hunted up all the objections he deenud tangibU 
and worthy of consideration, he said not one 
word as to the boundary of Kansas; he said not 



23 



one word as to the numbtM-s of Kansas. Where- 
fore, then, refer to it now? To lend me from the 
point under consideration ? No; but because, I 
suppose, he wished to name certain matters which 
Congress might consider if they deemed it proper 
to consider tliem. Nobody controverts that. This 
is not an attempt oti the part of tlio Administra- 
tion or of its friends to coerce the people. It is, 
however, an attempt on our part to sustain the 
will of the people. That will has been fairly and 
legally expressed. We have all the presumptions 
in that way, and we have none whatever against 
it. 

But the honorable Senator brings out another 
objection. True, he docs not claim the right to 
supervise the proceedings of the convention; but 
he is very fond of naming defects that the people 
ought to have an opportunity to pass upon; and, 
amongst others that he names, is the mode of 
amending the constitution. All I have to say is, 
that the Senator is mistaken. In all the sovereign, 
independent States in this Government, the peo- 
ple being organized — the people being political 
communities — tlsere are two ways for the State to 
• make a change. One is for the State, as a gov- 
ernment, to make a change of its form of govern- 
ment. Its government is composed of its officers 
— a Senate, House of Representatives, Governor, 
and so on. The constitution generally points out 
a method l)y which the government may eli'ect a 
change in the constitution. There is also an 
original power of change behind, superior to and 
overtowering that by which the people may call 
a convention, and this convention, acting in con- 
formity with the constituted authorities, may be 
called regularly, as was that of Kansas, and I'orm 
a constitution and adopt it theniselves, or submit 
it as they plcasi' to the people. 

Now, let us take the case of Kansas and ex- 
emplify. Four fifths of the people, says the Sen- 
ator, are on his side. In other words, four fifths 
of them arc opposed to the constitution. In the 
very first Legislature that meets there will be four 
fifths of the Senate and House, and the whole of 
the Governor, in favor of a convention. Four 
fifths of both Houses, and the whole Governor — 
because we cannot parcel him out — will pass a 
law calling ' .convention. They will make just 
such a cot'i.. uiion as they please, and four fifths 
of the people vill ratify it, if you will have it sub- 
mitted for a vo'te; and after that, those four fifths 
will elect another Governor, another House of 



Representatives, another Senate, and fill all tha 
offices of State. I do not apprehend any conflict 
of authority. This thing has been done ten thou- 
sand times, to speak by mere way of hyperbole; 
it has been done an indefinite number of times. 
The question in the R,hode Island case was entirely 
different from this. It was there the people act- 
ing in opposition to the govennnent. The initia- 
tive steps for a change of government were not 
taken by the government iiselt, and of that there 
was complaint. I do not preteiul to go into thd 
question whether that was rightful or wrongful. 
I have about enough points to consider now with- 
out lugging in unnecessary ones. I do say, how- 
ever, that it has never been held, and will not be 
held by the Senator himself when he reflects on 
it, that if four fifths of the people of Kansas de- 
sire to change their constitution they cannot do 
it in three months if they please. 

Mr. DOUGLAS. By revolution. 

Mr. GREEN. A revolution instituted by tha 
government itself, conducted by the government 
itself, a change effected in such a manner as does 
not conflict with the government. It was done 
in the Senator's own State. Was that revolu- 
tion ? 

Mr. DOUGLAS. It was done in conformity 
with the constitution there, not in opposition to it. 

Mr. GREEN. There is one part of the con- 
stitution of Kansas which is worthy of being con- 
sidered, for it bears on this subject. 

'■All political power" — 

Say the people of Kansas, speaking through 
their convention — 

"is inherent in the people, and all free government ar» 
IbuMcled on llicir autlioril)-, and iii.-iiuu; d Tor Iheir benefit, 
and therefore they have ai all times an inalienable and 
indeleasihli; right to alter, relorni, or abiili.Wi their rorni of 
goveriinientiii sueh manner as they may tliink proper." 

That is a part of the constitution of Kansas. 
Surely, therefore, the regular government of Kan- 
sas can institute a proceeding which will result 
in the exercise of those inalienable and indefeas- 
ible rights in perfect and entire reformation of 
the constitution. There is no question on thia 
point; there is no difficulty in it. It is a very 
little thing brought in as a makeweight. 

Mr. DOUGLAS. At the desire of the Senator 
from Pennsyivaniu, [Mr. Biglru,] I renew tho 
motion to postpone the further consideration of 
this question until Monday next. 

The motion was agreed to. 






'/.•. 




